Divorce Lawyer Midway Utah
If you are looking to end your marriage in Midway, Utah speak to an experienced Midway Utah divorce lawyer. Sometimes you may not have to file for divorce. You may be able to get an order from the court annulling your marriage.
There are, basically, two legal ways to end a marriage: divorce and annulment. Of course, there are also informal ways of ending a marriage. A man (less often a woman) can simply walk out into the night and never come back. This happens often enough; and it has a real impact on families. A couple that does not want to keep on living together can also decide, for whatever reason, to ask a court for a legal separation. In older sources, separation was often called “divorce from bed and board” (a mensa et thoro); and absolute divorce was called divorce “from the bonds of marriage” (a vinculis matrimonii). “Separation” is a better and less confusing term. A legally separated couple will live apart, still officially married, but often with the same kinds of arrangements a divorced couple might have, about custody, property division, and support for the dependent spouse.
Some couples separate, as a kind of prelude to divorce. They execute a separation agreement, to be incorporated into later divorce proceedings. Legal separation and annulment are substitutes for divorce— one quite feeble, the other quite powerful. Legal separations keep a thin version of a marriage alive. Annulments are hard to get (in theory). But if a marriage is annulled, both parties can remarry; indeed, this is usually the point of an annulment. Both annulments and legal separations appeal mostly to people with religious scruples against divorce.
Annulment is another way of ending a marriage. Annulment wipes a marriage off the books, as if it never existed. A Catholic annulment is not the same as a legal annulment. A Catholic annulment requires a proceeding in church tribunals. In American courts, annulment proceedings are much less common than divorce proceedings. The formal rules have always been—on the surface, at least—quite strict. Annulment is possible only when something was radically and fatally wrong with the marriage from the very beginning. A decree of annulment tears up a marriage “by the roots.”
Duress as a Ground for Annulment
In general, if it can be shown that the consent of one of the partners to a marriage contract was obtained through duress the aggrieved party may have the marriage annulled.
Strictly stated, to constitute duress there must have been actual physical force applied or serious threats of it to such a degree as to deprive the person of the opportunity to exercise his will freely. And such duress clearly must have controlled the will of the plaintiff throughout the whole transaction. But courts have not hesitated to qualify the strict rule. Thus, the relationship of the parties may be such as to cause less than physical force or threats thereof to be sufficiently coercive to constitute duress. Sometimes the duress need not be brought to bear directly upon the victim. It may be equally, if not more, effective when applied to one about whose welfare the plaintiff is deeply concerned. Consummation under the same coercion will not ratify the marriage.
Whether coercion in a particular case will invalidate a marriage is a question to be determined in the light of all the circumstances. Although there is some authority employing an objective standard, i.e., whether the coercion was enough to overpower the will of a person of ordinary firmness, the tendency is to rely on a subjective standard whereby it is enough to show that the will of the plaintiff was in fact overcome. Of course, when threats of harm are made and they actually do not coerce, it is not duress.
The defendant himself need not have exercised the coercion. A marriage may be avoided if the duress was applied by the defendant’s friends or relatives. However, the defendant must have been a party to this outside assistance, made use of it, or at least had knowledge of it. Even after duress in fact is satisfactorily established, the plaintiff cannot obtain an annulment unless he proves that the duress was the cause of the marriage.
Not all marriages where the consent of one of the parties was obtained under pressure will be annulled. Where the demands of public policy override the interests of the complaining party, the court will not find that there was duress. Thus, if a man consents to a marriage to avoid prosecution for bastardy, seduction, or rape, an annulment will not be granted unless the charge was made maliciously or without probable cause. It is generally felt that if the marriage is the price the plaintiff paid for escaping criminal penalties, a court should not help him evade the obligations of the bargain. By way of a rationale, it is often declared that the plaintiff’s choice was voluntary in the legal sense since he had the alternative of contesting the prosecution. Some courts “presume” that he gave his consent in order to correct the wrong against the girl.
A similar result is reached even though it later appears that he is not the father of the child if the accusation was made in good faith or with probable cause, or the arrest is illegal, or excessive bail is demanded, or the judge tells the accused that the penalties are more severe than the law allows. Marriages entered into under duress are generally held to be voidable rather than void ab initio.
Fraud Concerning Pregnancy
Fraud—basic lies about some critical fact—is a ground for annulment.
If at the time of the marriage, the woman has concealed from the man that she is pregnant by another, the court will grant the husband an annulment for fraud. It is said that the wife has put it out of her power to fulfill the marriage contract. She is incapable, at the time of marriage, of conceiving by her husband. A contrary representation is supposedly implied in the very nature of the contract. The husband finds himself in the unenviable position of accepting some other man’s child as his own, or exposing to the public his wife’s misconduct, thus bringing shame upon both his wife and himself.
If at the time of the marriage, the woman has concealed the fact that she is pregnant by another, but the husband himself has had antenuptial relations with her, relief is usually denied. A fortiori, relief will not be granted when it is impossible to tell whether the husband or another is the father of the child. The annulment is denied, it is sometimes said, because of lack of due caution on the husband’s part; sometimes relief is denied on the “clean hands” doctrine of equity courts. But if the woman was already pregnant and enticed the man into intercourse in an attempt to find a father for her child, relief can be granted to the one so trapped. In a few cases, the courts have annulled the marriage notwithstanding the husband’s misconduct.
When the man has been induced into marriage because of the woman’s claim of pregnancy by him, although she is not pregnant at all, the courts generally deny relief. The wife is not incapacitated from her marital obligations, the husband will not get another man’s child, and his own conduct has put him in a vulnerable prenuptial position.
Under the essentialia doctrine, marriage is not looked upon as an ordinary contract, where a party may rescind for fraud, or both parties may rescind at will. Marriage will not be annulled for every error or mistake concerning character or fortune even though induced by fraud. The fraud must go to the very essence of the marriage relation and the reasons or grounds that could be used for rescinding an ordinary contract will not justify annulment of marriage.
The Essentialia courts have characterized the fraud necessary to avoid the marriage, with different descriptions. The fraud must be so grevious that it places the injured party in a relationship that is intolerable because it cannot be honorably endured; it must be fraud that is vital or wholly subversive of the true essence of the marriage relationship. The fraud must be as to something existing as a fact, legal or physical, that is an impediment to marriage and not a promise as to future conduct; it must make the performance of marriage duties and obligations thereof impossible or render the assumption and continuance of the duties dangerous to health or life.
Where one of the spouses is married at the time of the marriage, the second marriage, of course, is void ab initio. However, continued living together may ripen into a common law marriage after the impediment has been removed. The second marriage will not be annulled even though the spouse knew nothing of the prior marriage. The factor of consummation is taken into consideration by some courts and it seems that annulment of an unconsummated marriage may be secured more readily than in a case where the parties have cohabitated.
A misrepresentation by one of the parties to a marriage concerning his or her character, wealth, or social position is usually not considered fraud sufficient to vitiate the marriage. If a party contracts a marriage for the material benefits to be acquired, he must make his own investigation or assume the risk.
This rule, however, is not always strictly applied. The age and mental condition of the plaintiff may be material in determining the nature and character of the fraud. The rule is sometimes relaxed when a young girl is decoyed into a bad marriage, or if the plaintiff is aged and feeble.
Usually, fraud as to prior chastity or morality will not avoid. Here again the courts will sometimes consider the youth of the complainant. But annulment is usually not granted where the parties had engaged in sexual intercourse before the marriage.
Lack of mental capacity is a grounds for annulment. Early in the twentieth century, states tried to prevent the marriages of people with mental disabilities. Even today, every state requires some minimal level of mental competence for marriage. But the legal standard is extremely low—lower than for virtually any other legal act.
Today it is easy to get a divorce in Utah. Utah law allows you to file for divorce on no fault grounds. Yet notwithstanding the ease of divorce, and, conversely, the cost of persuading a judge to grant an annulment of marriage, there has been a steady stream of cases over the years in which an applicant has sought an annulment of marriage on the basis that he or she has been tricked into marriage.
• Fraud – One spouse hid some information or lied to the other spouse about something that directly affects the marriage relationship between the two.
• Incest – The spouses are related to each other and a relationship between the two would be an incestuous relationship.
• Age – Under Utah law, there is a minimum age for marriage. Both spouses must be at least 18 years old at the time of marriage. However minors aged 16 and above can also legally marry in Utah with parental consent. Minors aged 15 can also legally marry in Utah with parental consent and court permission.
• Bigamy – For a marriage to be legally valid, the spouses must be married to each other and to no one else. If either spouse was legally married to someone else, that marriage must be legally terminated before the parties can marry each other. If the previous marriage of either spouse wasn’t legally terminated, the marriage will not be legally valid.
• Misrepresentation – Misrepresentation occurs when either spouses lies about a fact that is harmful to the other.
• Impotence – Inability of the male partner to have sexual intercourse.
Speak to an experienced Midway Utah divorce lawyer to know if you can annul your marriage instead of filing for divorce.
Midway Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in Midway Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help with Divorce. Legal Separation. Child Custody. Child Support. Alimony. Asset Division. Debt Division. Real Estate Division. Retirement Division. And Much More. We can help you.
8833 S. Redwood Road, Suite C
itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506