Division of Property

Question 1

What is the majority approach when it comes to determining what is marital property?

Answer 1

Marital property is property acquired during the marriage. Separate property includes (mnemonic=BIG) property acquired before the marriage, an inheritance, or a gift to one party.

Question 2

What does marital property include?

Answer 2

• Retirement benefits
• Vacation days
• Goodwill and reputation of a professional practice
• Stock options if acquired during marriage
• Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.
• If employment bonuses were added to an individual bank account, the bank account is divisible to the extent of those contributions during the marriage.
• Jx split: Property acquired by one spouse after separation but before divorce is finalized, in the majority, is considered marital property.

Question 3

Is marital property decree modifiable after divorce?

Answer 3

NO!

Question 4

What does marital property NOT include?

Answer 4

• Result of market appreciation ≠ result of spousal labor, so a home purchased before a marriage that has a market appreciation is the individual spouse’s property.
• Property acquired before marriage
• Gifts and inheritance
• Social security
• Property excluded by parties’ agreement (prenup or postnup)
• Professional licenses or degrees
• Property acquired after “separation” (which is term of art dependent in each jx)
• Award or settlement payment received that accrued before the marriage, regardless of when payment is received.

Question 5

What are the factors courts consider when distributing property?

Answer 5

• Length of marriage
• Prior marriages
• Age, health, earnings, earning potential, liabilities, needs of both spouses
• Contributions to education
• Needs for future
• Income, medical needs, retirement of both spouses
• Contributions to martial property
• Standard of living
• Economic circumstances
• Custodianship of minor children
• REMEMBER: Fault IS NOT considered

Question 6

What are the factors a court considers when determining spousal support?

Answer 6

• Financial resources of the seeking spouse
• Standard of living during the marriage
• Time it will take seeking spouse to find employment or finish degree
• Length of the marriage
• Contributions to the marriage (if anything helped to increase the earning potential of the other spouse)
• Parties’ age and health (physical and mental)
• Fault or marital misconduct

Question 7

Is the modification of spousal support allowed?

Answer 7

Yes, all spousal support is modifiable. Party seeking modification has the burden of establishing a significant and continuing change in circumstances in the needs of the dependent spouse or in themselves.

Question 8

What are some reasons a court would allow modification of spousal support?

Answer 8

Alimony awards may be modified if a court finds there has been a substantial change in circumstances making the prior award unreasonable. This must be an unanticipated change.

1. Death of either former spouse
2. remarried of receiving spouse (usually = termination)
3. cohabitation of receiving spouse with another partner
4. retirement (jx split)

REMEMBER: willful or voluntary reduction in income = no support

Question 9

What is the Divisible Divorce Doctrine? (ex parte divorce)

Answer 9

Remember: Court needs both PJ and SMJ.

A court with SMJ over the divorce action with personal jx over 1 spouse only can grant a divorce, but cannot determine property division, alimony, or child-support issues without personal jx over the other spouse.

Personal Jx: A court may not exercise personal jurisdiction over a defendant unless the defendant has minimum contacts with the state in which the court sits and the exercise of jurisdiction would be fair and reasonable.

Question 10

What is the rule regarding property division based on a premarital agreement?

Answer 10

A court will enforce a premarital agreement so long as it is voluntarily made, substantively fair, and if full disclosure of assets and obligations was made.

A court will not, however, enforce a premarital agreement regarding child custody or support if it is not in the best interest of the child.

Question 11

When can a court issue spousal support?

Answer 11

Alimony can be permanent, temporary, or granted in a lump sum. Almost all states require the trial court to consider the parties’ financial resources and needs, marital contributions, and marital duration. Some states also look at spousal misconduct, one spouse’s support for the other’s education or training, etc. The trial court has substantial discretion in choosing to award alimony.