Alimony Flashcards
Alimony factors pneumonic
DIE FACTORS
What are DIE FACTORS
Alimony factors
List alimony factors
Duration
Income (from all sources)
Earning Capacity
Financial Resources Age/emotional condition Contribution to marriage Tax treatment Other factors Responsibilty to children Standard of living
Evidence needed for alimony findings/factors?
Competent, substantial evidence
3 types of marriage lengths
Short, moderate, long
What types of alimony are/aren’t avaliable for short term marriages?
All types available, but need exceptional circmstances for permanent
What types of alimony are available for moderate term marriages?
All types, but need “clear and convincing evidence” for permanent
What types of alimony are available for long-term marriages?
All, but rebuttable presumption in favor of permanent
What income counts for alimony?
Income from all sources
What factors do you look at when determining whether to impute income to someone?
Is lack of employment voluntary AND are they using diligent efforts to get similar paying work?
Factors in how much income to impute?
Employment potential
Probable earnings based on work history, qualificaitons, prevailing wages
How much alimony can you impute when looking at earnings history?
No higher than what they’ve earned absent special circumstances
Can a court ask you to withdraw from IRA early and take penalties in alimony?
Yes
When answering question, remember some assets are income generating from ED.
No comment.
What type of alimony: W has kids, kids need in home care, if W goes to work, she won’t earn enough to afford care?
Permanent alimony. Must say special or exceptional circumstances if short term, “clear and convincing” if moderate term.
For alimony, do you tax it?
Only if pre-2019 agreement and says so
Does adultery matter for alimony?
Only if dissipation or has financial impact on recipient
Court awarding alimony. Looks at contributions before marriage. Valid?
No, only during marriage
Quote about standard of living?
Not a superfactor
Can’t pass from prosperity to misfortune
What to add about standard of living?
If both can’t afford, both cut back
Not a super factor
Can’t live beyond means and get alimony
list all forms of alimony
BTG, rehab, durational, permanent, lump, temp, nominal
What is purpose of BTG?
Assist in transition from being married to single
Things to say about BTG in any answer:
Identifiable short term needs 2 years or less Terminates on death/remarraige Nonmodifiable Can be prepaid/lump
Does BTG terminate on death or remarriage?
Yes
What must court find for BTG?
Identifiable, short term needs
Can BTG be in a lump
Yes
Is BTG modifiable?
NOt at all.
What do you need to put in answer about rehab alimony?
Specific rehab plan
Termination date
WHat is point of rehab?
Redevelopment of skills or acquistion of skills/education/training
Are living expenses includable in a rehab alimony plan?
Can be
What to prove to modify rehab alimony?
Yes:
Substantial change
Noncompliacne with plan
Completion of plan
Can rehab turn into another type of alimony?
Yes, in modification, upon proper showing
Q: Standard of living is $10k/mo. Rehab alimony will give person $5k a month. Can court order rehab only?
No - has to get to marital standard
WHen can rehab alimony become permenant?
If rehab plan fails. Focus on reasonable/diligent efforts
Findings to make for durational alimony re: length of marriage
Presumed for short/medium, and must say permanent is inappropriate if long term
Does durational alimony terminate on death/remarriage?
Yes
Can you modify durational?
Amount yes, term ONLY under exceptional circumstances
HOw long can durational be?
Not longer than marriage
If awarding permanent alimony, what must yousay?
No other type of alimony is appropriate.
Rebuttable presumption for long term
Temproary alimony - waivable?
Nope
Undifferentiated support - appeal issue?
No, reversible.
W is appealing FJDOM. Can she ask for temporary alimony during appeal?
Yes, if not being paid
Does amount of temp alimony differ from FJ alimony?
No vacation or long-range items in temp alimony
What is point of nominal alimony?
Preserve right to permanent alimony when there is a reasonable expectation of ability to pay in future (think recession)
Requirements for LUMP SUM alimony?
Must have special circumstances (old ppl, faliure to pay)
Must be affordable
Is lump sum alimony terminate on death?
No
Can you do rehab alimony as a lump sum?
Yes.
Can you modify rehab alimony if a lump sum?
Only if it is paid over time.
Is lump sum alimony vested if paid in installments?
Yes.
What are the steps to impute income?
Person who wants alimony establishes her income
Payor rebuts
Is termination of income voluntary?
Were dilingent/bona fide efforts made?
Must show employablility AND avialble jobs
Can you impute income to a retired person?
No
What evidence do you need for need/ability to pay?
Competent/substantial
What is the standard on appeal for alimony award?
Competent, substantial alimony for factors
Abuse of discretion on final decision
Temp alimony - available in modification?
No (get what you originally got)
What are the grounds/standard to modify alimony?
Substantial change
Not contemplated at FJDOM
SMIP
(Significant, material, involuntary, permanent)
In alimony modification, if change in income is voluntary, what is the test the court looks at?
Good faith
1) avoiding alimony by changing job?
2) using good faith to resotre income?
What is the Pimm test used for, and what is pneumonic?
For voluntary retirement
HAART
What should court do if W has unmet needs in an alimony award?
Award nominal
OR
Reserve J
In modification, do you look at current SOL or SOL during marriage?
Needs during marriage
Can you modify: H has more ability to pay.
No, unless W had unmet needs at trial or W has increased need.
What is burden to prove supportive relationship?
Preponderance
What is HAART and what does it stand for?
Test for Pimm/voluntary retirement
Health Age of person Age of typical retirement Reason for retirement Type of work peformed
Can you have a supportive relationship with a relative?
No
How much income can you impute (Pneumonic)?
POP
Probable earnings based on work history
Occupational qualifications
Prevailing community wages
What is POP?
Test for how much to impute
Probable earnigns based on work history (5 yrs)
Occupational qualifications
Prevailing community wages
What is pneumonic for supporive relationships?
MRSS JACF
Married (held out)
Reside together (time)
Support (kids, each other)
Services (other, company)
Jointly owned assets
Agreement (express or implied)
Create value/enhance value
Financial interdependence
What is MRSS JACF
Test for supportive relationship
Married (held out)
Reside together (time)
Support each other/other kids
Services for each other/comapny
Jointly owned assets
Agreement (express/implied)
Create/enhance value
Financial interdependence
How to answer alimony questions?
Intro Burdens Factors Apply factors Details Length Type of alimony/presumptions Standard of living Imnputation IDO Insurance Temproary Modification
When can you award retroactive alimony and to when?
To DOF
If need/ability existed at DOF
Can you modify alimony arrearages?
no, they are vested
Can court put you in contempt for alimony?
Yes, if you had ability to pay and it’s your fault you didn’t pay
Can appellate court reclassify durational alimony as permanent?
Yes, depending on factors/presumptions
Alimony is dischargeable in BK. True/false
No, can’t discharge
If you file for alimony unconnected with divorce, can you get parenting plan?
Yes
How to suspend profesional license for nonpayment of support?
File petition, 30 days to pay, then 30 more days, then suspend
UNLESS
Irreparable harm to employees of biz OR H tried to comply
*last resort
Can you file petition for support unconnceted with divorce if H lives in FL? What about GA?
Yes, no
Is alimony taxable?
Yes, if FJ before 12/31/18
Lump sum alimony - deductible or no and why/why not?
No, because vests immediately and survives death
Lump sum alimony - chargeable against estate if payor dies?
Yes, survives death
Calculate alimony. Net or gross?
Use Net to calculate.
When do transfers have no capital gains/loss?
If between spouses OR incident to divorce
What does incident to divorce mean?
Within 1 year of marriage ending or related to the end of marriage (6 year soft timeline)
If you sell an asset in answer, what must be addressed?
Taxes
Insurance
Capital gains/loss
When does gift tax apply to divorce?
if recipient spouse isn’t US citizen
Define FMV
Price between buyer/seller with reasonable knowledge of all relevant facts
WHAT DO CAPITAL LOSSES DO?
CARRY FORWARD
What is the D in DIE FACTORS
DURATION OF MARRIAGE
WHAT IS THE I IN DIE FACTORS
INCOME FROM ALL SOURCES
WHAT IS THE E IN DIE FACTORS
EARNING CAPACITY
WHAT IS THE F IN DIE FACTORS
FINANCIAL RESOURCES
WHAT IS THE A IN DIE FACTORS
AGE/EMOTIONAL CONDITION
WHAT IS THE C IN DIE FACTORS
CONTRIBUTIONS TO MARRIAGE
WHAT IS THE T IN DIE FACTORS
TAX TREATEMENT
WHAT IS THE O IN DIE FACTORS
OTHER FACTORS
WHAT IS THE R IN DIE FACTORS
RESPONSIBILITES TO CHILDREN
WHAT IS THE S IN DIE FACTORS
STANDARD OF LIVING
PNEUMONIC FOR HOW MUCH INCOME TO IMPUTE?
PEEP
PROBABLE EARNINGS (work history, qualfications, prevailing wages) EMPLOYMENT POTENTIAL (aka available job)
Court awards permenant alimony. What finding must it make?
No other form of alimony is appropriate.
How long can rehab alimony go?
5 years
New law. How to get durational over the percentage (factors) and by what legal standard?
Clear and convincing evidence of
1- Age and employability limit self support;
2- Limited financial resources to support;
3- Mental or physical disability limiting support;
4- caregiver to disabled child of the parties
