Equitable Distribution Flashcards
What is pneumonic for list of marital assets?
VEGRAP
Vested/nonvested benefits Enhancement in value of NM Gifts from spouse REal property Assets/liablities acquired Paydown in principal of any NM, and any passive appreciation on NM, if mortgage paid from marital funds
What is Pneumonic for nonmarital assets?
PIGFA
Premarital stuff Income from NM assets Gifts Forgery Agreement marking NM
What is pneumonic for unequal distribution factors?
CEDRIC CADD
What is CEDRIC in CEDRIC CADD
Contribution to marriage Economic circumstances Duration Retaining home Interruption of careers Contribution to other spouse
What is CADD in cedric cadd?
Contribution to assets
Anything else
dissiption
Desirability of retaining asset
What contributions are included in unequal distribution factors?
To marriage
To other spouse
Of each spouse re: acquisition or enhancement of assets
What must be in every test answer re: an asset?
ID marital or NM
Value asset and date of valuation
Who gets it?
What is evidentiary standard for ED?
Competent, substantial
How do you value retirement pay for ED?
Assume you retire on DOF, calculate marital %
Stock options - marital or NM?
If given for past services, M
If for future services, NM
H given stock options during marriage. Cannot cash them out if he leaves company. M or NM?
Marital. (Accrued during marriage)
H given stock options during marriage. None have vested. M or NM?
Probably NM, unless a portion becomes marital via effort.
H has stock options. No way to value. What to do?
Put 50% marital in construtive trust for W, so you ID as marital and value later. Reserve J to value.
Disability benefits - M or NM?
NM
What is definition of goodwill?
Value a biz has beyond property and capital.
Define personal and enterprise goodwill.
Personal - reputation
Enterprise - value above tangible assets
Is enterprise godowill marital?
Yes
H owns a company. Has a noncompete. Is there goodwill?
Yes, personal goodwill, so nonmarital.
H owns part of company but doesn’t do anything. Just carries out orders from other people. Is that marital labor?
Yes, Robbie.
H owns part of company. He’s 7 levels from mgmt and does nothing. Marital labor?
No
Company has retained earnings. Marital?
Not likely.
What are burdens and for who re: marital labor?
If W proves marital labor into a NM asset, then H has to prove that the labor is exempt for some reason.
*must quantify amount
Gifts from spouse - M or NM?
M.
How do you know whether a gift between spouses is, in fact, a gift?
Look at donative intent, loss of complete dominion and control.
H/W own insurance policy. File for divorce. Insurance payout is 2 years away. Is payout marital?
Yes, if reason incurred during marriage
H has sick days. Are those marital?
Yes, if they have a value.
Personal injury claims. M or NM?
Past lost wages/loss of earning capacity - M
Future lost wages/earnings - NM. (But you can use for support)
How do you calculate value of NM home paid down using marital funds?
Take value of house, minus purchase price, minus active appreciation. This = passive appreciation.
Take total marital payment of principal, divide by total value of property. This is marital %
Take the % of passive and all active and all paydown, add together, get total marital value.
H owns NM home. Total equity is $100k. B/c of paydown with marital funds, the total marital value is $150k. Response?
Court can ignore, since value exceeds equity.
Increase in equity in NM house b/c mortgage paid down - M or NM?
M
H built home before marriage, in H’s name. H paid down loan during marriage. Then, H/W took out LOC on house which was also paid down. M or NM?
Home is NM, but there would be marital appreciation.
H owns NM trust. Moves everything in trust from Schwab to NOrthern during marriage. Is trust marital?
No.
H owned NM corporation in VA. Moves to FL and reincorporates in FL. Then W files for divorce. Is company M?
No, remains NM.
What is general rule for picking date of valuation of asset?
Whatever is just and equitable under the circumstances.
Shechter says marital estate is $200k. Breslow says $300k. Judge says it’s $250k. Response?
Can’t split difference, must pick one.
W spends $200k on plastic surgery. Dissipation?
yes
Define dissipation
use of marital funds for one’s own benefit,
For purpose unrelated to marriage,
At time when marriage is going through irreconcilable breakdown
Can you do ED in installments?
Yes. (Charge interest!)
Court gives W $300k in alimony or, as backup, as ED. Nonmodifiable, and H got other property. What now?
Because itw as in exchange for property, and nonmodifiable, it’s more ED so no contempt.
H/W have MSA incorporated into FJDOM. What’s the SOL to enforce the MSA terms?
20 years
W wants to sell marital residence. Pleads ED of all assets. Response?
Some circuits say fine, other say you hae to plead partition.
H has child support arrearage that he owes. Agrees to give W more in ED to cover it. Response?
Fine, b/c you can support children through assets.
W wants interim ED. What does she do?
File verified motion
Must allege good cause/extraordinary circumstances
Buzz marries Jeff. Buzz and Fitim own house where Buzz/Jeff live. Court orders Buzz to sell house. Response?
Can’t, cuz Fitim is not party. Buzz keeps 50% interest.
H/W open LLC, use it to buy a farm. Court awards farm to W. REsponse?
Can’t do that. Must join LLC as party first.
H/W married. H puts marital residence in irrevocable trust during marriage. W wants 50%. Repsonse?
Nope, once in trust, no longer marital property. Belongs to trust not parties.
Is passivr appreication marital or NM?
Marital
What components of NM home could be marital?
Marital % passive appreciation
Mortgage principal paid down
Active appreciation
When calculating mortgage paydown of NM home, what value do you use for home?
Date of marriage*
Or Date of purchase
or date of mortgage
WHICHEVER IS LATER
Probably date of marriage cuz after likelt marital
