Divorce/Division of Property/ Alimony Flashcards
No Fault Divorces
Most states offer no-fault divorces that provide for dissolution of marriage without regard to marital fault.
Grounds for No Fault Divorce
- Irretrievable breakdown of marriage (irreconcilable differences)
- living seperate and apart (for period of time specified by statute)
Defense to No fault Divorce
Denial that Marriage is irretrievably broken or that parties have lived separate and part for the specified time
(Fact one spouse thinks marriage should be saved and does not agree it has broken down is insufficient - both must agree for defense to work, or they must move back in together, etc.)
Division of Property
- not modifiable
- courts attempt to place parties in their pre-marriage position
- most common type is equitable division of marital property
Equitable Division of Marital Property
Marital property is divided at the divorce, but separate property remains property of the owning spouse
Marital Property
Property acquired during the marriage is marital property regardless of how title is held. (Includes employment benefits, stock options, and pension rights)
Separate Property (BIG)
Property Acquired BEFORE the marriage, an INHERITANCE, or a GIFT to one party.
Property Acquired before Marriage but paid for with marital funds (courts split - majority view)
court will apportion the property between separate and marital interests in proportion to contribution of separate and marital funds used to pay for property
Transmutation
separate property treated in a way that evidences an intention for the property to be marital property
(Ex: Husband uses $10,000 of his separate property as a down payment on a home for him and his wife titled in both of their names.
There can be a presumption of gift based on joint title and the $10,000 would be classified as marital property)
Factors considered in equitable division (generally need to list 5-6)
- age, education, background, and earning capabilities of both parties
- duration of the marriage
- standard of living
- present incomes of both parties, vocational skills, employability
- source of money used to purchase property
- health of parties
- needs of parties
- child custody provisions
- if distribution is in addition/in lieu of alimony
- contribution to acquisition
- economic fault (someone pays for affair/or gambling problem)
- Contribution as a homemaker
(no marital fault consideration)
Alimony Types
- Permanent Periodic Spousal Support
- Lump Sum Spousal Support
- Rehabilitative Spousal Support
- Reimbursement Spousal Support
Lump Sum/Reimbursement is usually not modifiable
The trial court has great _______ in awarding Alimony.
DIscretion
Purpose of Alimony
Purpose is to ensure an adequate income stream for a spouse whose economic dependency resulted from the marital relationship
Factors considered when awarding Alimony (need 5)
- Standard of living during marriage
- duration of marriage
- age/physical/emotional conditions of parties
- financial resources of each party (look at property division)
- contribution of each party (homemaking, childcare, education, and career building)
- time needed to obtain education/training to enable either party to find employment
- ability of payor spouse to meet their needs while paying spousal support
- Marital fault (in some jurisdictions)
Permanent support
awarded to spouse with neither resource nor ability to be self-sustaining
