Family Law Flashcards
Marital property is
all other property, excluding separate property, acquired during marriage. Marital property includes income and appreciation of separate property. Marital property is subject to equitable (but not necessarily equal) division at divorce.
Separate property includes things like property owned before marriage, property acquired in exchange for SP, or property acquired by gift, devise, bequest, or descent.
When a gift is given to both spouses,
courts will look at the donor’s intent to determine whether donor intended both parties to use the gift.
Unless a particular wedding gift is only appropriate for the use of one spouse, wedding gifts should be classified as marital property.
The purpose of spousal support is
to ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship.
Marital Fault & Alimony
Some states will consider marital fault when awarding alimony; but in others, alimony is not based on marital fault.
Spousal support generally
The trial court is vested with great discretion in awarding alimony.
When determining what type and how much support to award, the court considers:
• The standard of living established during the marriage
• The duration of the marriage
• The age & physical & emotional condition of the parties
• The financial resources of the parties
• The contribution of each party to the marriage
• The time needed for the party seeking support to obtain
the training necessary to find appropriate employment
• The ability of the payor spouse to meet their needs
while paying spousal support
• Marital fault (considered in most states for alimony)
The primary considerations are the needs of the claimant and the ability of the other spouse to pay.
The recent trend is to award less alimony than in past bc of the # of couples where both parties have valuable skills for the workforce.
Permanent spousal support
is awarded to a spouse with neither resources nor ability to be self sustaining.
Child Support Payments (calculating)
When the court calculates how much child support the spouses should pay, the court will look primarily to the monetary needs of the children (with mind to the best interest of the child) and the spouses’ ability to pay.
Most states have adopted specific guidelines to make calculations more uniform. These guidelines usually provide a formula based on the number of children; the children’s ages; any special needs of the children; and the parents’ incomes.
In most states, the court may deviate from the guidelines but must take findings of fact justifying the deviation.
FFCCSOA (full faith and credit for child support orders act)
Under the FFCCSOA, full faith and credit must be given to another court’s child support order if:
- the court had jursidiction over the matter and the parties; and
- the parties had reasonable notice and an opportunity to be heard
UIFSA to enforce a child support order
The court that initially issued the order has jurisdiction to enforce, and UIFSA helps parties enforce orders in other states.
Under UIFSA (uniform interstate family support act), a court of State B may serve as an initiating tribunal to request the court of State A, which has continuing and exclusive jurisdiction over the support order, to enforce or modify the order issued in State A.
Another state can enforce the child support order either by direct enforcement (mail to employer) or registration (issuing state sends order to other state).
Jurisdiction to Modify Child Support Orders
Generally, the court that issues the controlling child support
order has continuing and exclusive jurisdiction to modify it.
The role of a court in another state is only to enforce the
original order, unless no party resides in the issuing state or
the parties consent to jurisdiction elsewhere.
Modification of Child Support Awards
Child support is modifiable based on a substantial and continuing change of circumstances affecting the needs of the child or the ability of the parent to pay (such as changes in employment, the growth of the child, inflation, income, retirement, or disabling illness.) [A voluntary reduction in income will not be a ground for modification.]
Past due installments of support cannot be retroactively modified
Under the UCCJEA, a court has jurisdiction to initially enter or modify a child
custody or visitation order if the state:
- Is the child’s home state, or
- Was the child’s home state within the past six months and
the child is absent from the state, but a parent or person
acting as a parent (guardian) continues to live in the state
Where is a child’s home state?
A child’s home state is the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement
of the proceeding (or the state where the child has lived since birth if the child is younger than six months old), disregarding temporary absences.
When “Home State” Rule Does Not Apply
A court has jurisdiction to enter or modify a child custody or
visitation order if no other state has or accepts home state
jurisdiction and:
- The child and at least one parent (or person acting as a
parent) have a significant connection with the state, and - Substantial evidence concerning the child is available in the state
Standard in granting child custody and visitation
Best interest of the child standard. Court has discretion.
Generally, courts consider:
- wishes’ of the parents;
- wishes of child (if at least 8-12);
- relationship of child with each parent;
- child’s adjustment to home/school/community; and
- the mental and physical health of the parents
