16.1 Divorce, Annulment, Separation, Property Division & Spousal Support

The Paralegal CORE Competency Exam (PCCE) tests family law as a labeling-and-procedure skill. Domain 2 asks whether a marriage is being dissolved, separated, or annulled; which property system applies; and what kind of spousal support a court or a contract created. This is federal-and-general teaching. States vary on residency periods, community property versus equitable distribution, and alimony labels. Learn the common pattern, then read the stem for a local statute. Do not treat any one state's family code as national law.

Later sections in this chapter cover custody and child support, adoption and parentage, prenuptial agreements, and family ADR. This section is status, property, and spousal support.

Dissolution, legal separation, and annulment

A dissolution (divorce) is a court judgment that ends a valid marriage. The parties are unmarried and generally free to remarry. If the court has jurisdiction, it can divide property, award support, and enter parenting orders in the same case.

A legal separation (older materials say divorce from bed and board or separate maintenance) authorizes the spouses to live apart and can include property, support, and parenting orders, but the marriage remains. The parties cannot remarry. Clients use it for religious reasons, health-insurance continuity, immigration timing, or a cooling-off period. Many states later allow conversion to a dissolution on motion or after a waiting period. Conversion is a state procedure — do not invent a national 90-day automatic conversion.

An annulment (declaration of invalidity) is not a faster divorce. It is a finding that the marriage was void or voidable at formation.

Void versus voidable

A void marriage never existed as a legal marriage. Classic grounds are bigamy (a living undivorced spouse) and incest within the prohibited degrees. Some statutes treat certain underage marriages as void. A void marriage can often be attacked by a party or, in some settings, a third person; death does not always ratify it. Courts still enter a declaration so title, putative-spouse claims, and vital records are clean.

A voidable marriage is valid until a court sets it aside. Classic grounds include fraud going to the essentials of the marriage (identity, ability to have children, pregnancy by another — states vary on what fraud counts), duress, temporary lack of capacity, and sometimes incurable impotence existing at the ceremony. Only an injured spouse usually has standing. Ratification — continuing the marital relationship after learning the defect — typically waives annulment. Children of an annulled marriage are treated as legitimate by modern statutes.

A putative spouse is a person who had a good-faith belief in a valid marriage. Some states give that person property or support as if married even though the ceremony was void. The doctrine is not universal; flag the good-faith fact.

Exam trap: if the marriage was valid when celebrated, the remedy is dissolution or separation, not annulment. If the stem is a secret existing spouse, think void.

No-fault, fault, and residency

Almost every U.S. jurisdiction offers no-fault divorce: irretrievable breakdown, irreconcilable differences, or living separate and apart for a statutory time. The petitioner need not prove adultery or cruelty.

Fault grounds still exist in many states as an alternative path or as a factor in alimony (and, in a minority of states, in property division). Classic fault labels: adultery, cruelty, desertion, imprisonment, habitual intoxication. Fault is rarely the only available path. Do not treat fault as abolished everywhere or as required everywhere.

Residency / domicile. Family law is state law. A divorce court needs subject-matter power over the status action and a residency or domicile period set by the forum (commonly on the order of six weeks to one year). Do not memorize one state's number as national law. Read the stem if it recites a statute.

Personal jurisdiction over the respondent is required for in personam orders — child support, spousal support, and often property that is not before the court. A petitioner who is domiciled in the forum can obtain an ex parte divorce that changes status even if the other spouse is absent (Williams v. North Carolina conceptually). That status judgment does not automatically bind the absent spouse's out-of-state property or create a personal support obligation. Support needs a constitutionally sufficient connection to the defendant (Kulko v. Superior Court conceptually). Migratory divorce and full-faith-and-credit issues still appear as vocabulary.

Two property systems — name both

The United States uses two marital-property systems. The exam expects the names and the logic, not a 50-state map.

Community property (a minority of jurisdictions, classically about nine, plus an opt-in regime in at least one other): earnings and property acquired during the marriage by onerous title (labor, purchase) are community, owned equally. Separate property is what a spouse owned before marriage, plus gifts and inheritances to one spouse (lucrative title), and sometimes the pain-and-suffering slice of a personal-injury recovery. At divorce, community is divided; many community states start from an equal division of the community estate.

Equitable distribution (the majority): the court divides marital property in a manner that is fair, which is not automatically 50/50. "Equitable" means just under a statutory factor list, not equal.

Exam tell: if the stem says community property, think equal community shares and tracing of separate estates. If it says equitable distribution, think marital versus separate and a factor analysis. Never announce a nationwide 50/50 rule.

Marital versus separate; tracing; dissipation

Marital / community character typically attaches to wages, retirement accruals during the marriage, houses bought with marital earnings, and businesses grown with marital labor.

Separate character typically attaches to premarital assets, gifts and inheritances to one spouse, and property a valid prenup classifies as separate. Personal-injury recoveries split in many states: lost wages and medicals look marital; pain and suffering may stay separate.

Commingling and transmutation. Depositing a $40,000 inheritance into a joint checking account and paying marital bills from that account can transmute the fund, create a pro-rata mix, or generate a reimbursement claim. Tracing follows dollars and title. Active appreciation of a separate business from marital labor or marital funds may be marital; passive market appreciation of a separate account may stay separate. Formulas differ — flag the facts; do not invent one national active/passive statute as universal.

Dissipation is waste of the marital estate in contemplation of divorce or for a non-marital purpose (affair travel, a gambling binge, secret transfers to relatives). Courts can add the dissipated amount back to the dissipator's column so the innocent spouse is made whole. Ordinary living expenses, reasonable attorney fees, and good-faith business losses are not dissipation.

QDROs conceptually

A Qualified Domestic Relations Order (QDRO) is a domestic-relations order that an ERISA plan administrator qualifies, directing the plan to pay an alternate payee (spouse, former spouse, child, or other dependent) a share of a participant's private retirement benefit. Without a QDRO, the plan generally pays only the participant. A decree that "awards half the 401(k)" is not self-executing against the plan.

A QDRO must identify the participant, the plan, the alternate payee, and the amount or formula, and it cannot require a benefit the plan does not offer. Military retired pay uses the Uniformed Services Former Spouses' Protection Act (USFSPA), not a classic QDRO. Federal civil-service and many public plans have their own court-order procedures. IRAs are divided under tax rules (a transfer incident to divorce), not ERISA QDRO practice.

Paralegals gather the summary plan description, draft or proof the order from the plan's model, and calendar the qualification letter. Do not tell a client that the decree alone moved the 401(k).

Spousal support: types, factors, modification

Terminology varies: alimony, spousal support, maintenance. Learn the functions, not one state's labels.

• Temporary / pendente lite support maintains the status quo while the case is pending.
• Rehabilitative support is time-limited so the recipient can train or reenter the workforce. It is the most common modern form.
• Reimbursement support looks backward — it repays a spouse who financed the other's degree or license (the classic medical-school pattern). Some states treat the same facts as a property or restitution theory.
• Permanent / indefinite support appears in long marriages when age or disability makes self-support unrealistic. It is less common than a generation ago and is often reviewable.
• Lump-sum / alimony in gross is a fixed amount, sometimes treated as non-modifiable contractual support.

Exam trap: rehabilitative looks forward (job skills). Reimbursement looks backward (contribution to earning capacity).

Courts weigh a familiar cluster of factors (statutes differ): length of the marriage; age and health; earning capacity and time out of the labor market; standard of living; homemaker and childcare contributions; property awarded; tax consequences; and, in some states, fault.

Tax. For instruments executed after December 31, 2018, alimony is generally not deductible by the payor or included in the payee's income under the former IRC §§ 71 and 215 (Tax Cuts and Jobs Act). Older instruments may still follow the old inclusion/deduction rule if not modified into the new regime. Do not teach the pre-2019 deduction as the current default.

Modification versus contractual non-modifiability. A court-ordered support stream is generally modifiable on a substantial / material change in circumstances (involuntary job loss, serious illness, sometimes retirement or the recipient's cohabitation — cohabitation rules are state-specific). Parties can, in many states, make a support term non-modifiable by contract. Child support cannot be bargained away that way. Death of either party or remarriage of the recipient often terminates periodic alimony unless the agreement says otherwise.

Exam tell: read whether the obligation is an open court order or a bargained non-mod clause. Do not self-adjust: the payor files a motion; unpaid installments typically become judgments.

Paralegal tasks on the divorce file

Assemble sworn financial affidavits, several years of tax returns, account statements, retirement SPDs, and a tracing spreadsheet for any inheritance or premarital house. Calendar temporary-support hearings, discovery cutoffs, and QDRO qualification. Do not advise which property system applies or whether the client should take rehabilitative versus lump-sum support — that is the attorney's advice. Flag dissipation facts, missing plan documents, and any out-of-state property that may need a sister-state order.

Term-swap. Dissolution ends a valid marriage. Legal separation keeps the marriage and still allows orders. Annulment is for void or voidable formation defects. Community property and equitable distribution are the two systems to name. A QDRO is how an ERISA plan is told to pay an alternate payee. Rehabilitative support trains; reimbursement support pays back.