Division and Support Flashcards
What is marital property
property acquired during marriage is marital property unless acquired through gift, bequest, devise, or descent.
Gift given to both parties
Court looks at the donors intent
- wedding gifts classified as marital property
Spousal Support Considerations
- standard of living,
- duration of the marriage,
- age and physical and emotional conditions of both parties
- the financial resources of each party,
- the contribution of each party to the marriage
- time needed to obtain education or training to enable either party to find appropriate employment
- ability of the payor spouse to meet his needs.
Permanent Support
support to a spouse who has neither the resources nor the ability to be self-sustaining
Rehabilitative spousal support
periodic payments for a limited time to enable a spouse to gain skills to become self-supporting
Reimbursement spousal support
the spouse who support the other spouse while the latter obtained a professional license or degree
Child Support is based on:
child’s monetary need AND obligors ability to pay
- most states have guidelines based on number of children, ages, special needs, and parents income
May a court deviate from the child support guidelines
Yes, upon a finding of fact justifying the deviation
requirements for common law marriage
(1) capacity
(2) exchange of consent
(3) cohabitation
(4) holding out publicly of living together as spouses
for common law marriage what is sufficent holding out
conduct of parties- using last name, opinion join bank account, telling others
contracts between unmarried cohabitants will be enforced if:
secual relations are not the only consideration for the contract
when a valid marriage is found the court will divide based on
equitable distribution
equitable distribution factors
(1) earning capacity of each party/ current incomes
(2) duration of marriage
(3) standard of living
(4) source of money used to purchase marital assets
(5) parties health and needs
(6) custody of minor children
(7) each parties contribution to marriage
8. assets, debts and liabilities
9. needs of the parties
10. whether part has dissipated marital property
11. opportunity to acquire future income
property acquired before marriage but paid for after marriage with marital funds
courts will apportion the property between separate and marital interesting proportion to the contribution of separate and marital funds used to pay for the property
no fault divorces may be granted upon a showing that:
(1) marriage is irretrievably broken AND
(2) parties have been living separate and apart for a specified time
defenses to no fault divorces
none unless proving not irretrievably broken and that parties haven’t been living separate and apart
- one spouses belief is generally insufficient
child support is modifiable on:
substantial change in circumstances
joint custody
- fitness of both parents
- whether parents agree
- ability to communicate and cooperate
- child’s preference
- level of involvement
- geographical proximity of home
- similarity or dissimilarity of homes
- effect on child psychological development
- ability to carry out order
tender years doctrine
grants custody of a yong child to the mother unless she is proven unfit - questionable constitutional validity due to gender bias
BIOC factors for custody
- wishes of the parents
- wishes of the child
- interrelationship of the child with his parents, siblings and others
- childs adjustment to home, school and community
- menal and physical health of all individuals involved
divisible divorce doctrine-
divorce portion valid, but property portion not because of lack of PJ
ex parte divorce
one based on the domicile of one spouse without personal jurisdiction over the other
spousal support
issue must usually be resolved by a court having personal jurisdiction over the spouse whose property rights are at issue
Full faith and credit for child support act
full faith and credit must be given to another court’s child support order if
(1) court had jurisdiction over the matter and parties; AND
(2) parties had reasonable notice and opportunity to be heard
Uniform Interstate Family Support Act
UIFSA- once a state with proper jurisdiction issues a support order, court of another state is limited to enforcing UNLESS all parties no longer reside there or written consent
standard for awarding custody and visitation
best interest of the child
removal of child
substantial, marital change of circumstances warranting modification
PKPA- Parental Kidnapping Prevention Act
state may not modify a custody order if one of the parties continues to reside in the issuing state and under that state’s laws the court continues to have and does not decline jurisdiction
Uniform Child Custody and jurisdiction Enforcement Act
court that made initial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that:
- neither the child nor the parents continue to reside in the state OR
- the child no longer has a significant connection with the state and substantial evidence relating to the child’s care, protection, training, and personal relationship is no longer available in the state.
Uniform Interestate Family Support Act
A court that did not render support may serve as initiating tribunal to request the rendering court, that has continuing and exclusive jurisdiction, to enforce or modify the order
