Family Law Flashcards
Summary
The State A court may exercise personal jurisdiction over the wife because she was personally served in State A. However, subject-matter jurisdiction over the interstate modification of child support is governed by the Uniform Interstate Family Support Act (UIFSA). Under UIFSA, State A does not have jurisdiction to modify the order for the daughter’s support because the wife is still a resident of State B. UIFSA, on the other hand, does not govern property distributions, and thus a State A court is not precluded from hearing the husband’s petition to modify the marital-residence-sale-proceeds provision of the divorce decree.
A child support order may not be modified retroactively. A child support order may be modified prospectively based on a substantial change in circumstances. Courts agree that a significant decrease in income is a substantial change in circumstances. All states treat voluntary income reductions differently than involuntary reductions but employ different approaches for evaluating the impact of a voluntary reduction. Whether the husband could obtain prospective modification of the child support order depends on which approach is applied.
A property-division order is not subject to post-divorce modification based on a change in circumstances. Thus, the husband may, in some states, obtain prospective modification of the order for the daughter’s support, but he may not obtain modification of the marital-residence sale-proceeds provision.
Does the State A court have jurisdiction to modify the State B child support order?
Personal jurisdiction over a nonresident respondent does not confer subject-matter jurisdiction over child support modification. Under UIFSA, a State A court may not modify a child support order issued by a State B court when, as here, the child or either parent continues to reside in State B, the jurisdiction that issued the child support order.
Rule and Application
The State A court may exercise personal jurisdiction over the wife. The wife was personally served in State A, and a state may exercise jurisdiction based on in-state personal service. See Family Law Analysis Burnham v. Superior Court, 495 U.S. 604 (1990). But personal jurisdiction over the wife is not enough to give a State A court jurisdiction to modify the State B support order.
The interstate enforcement and modification of child support is governed by the Uniform Interstate Family Support Act (UIFSA), which has been adopted by all states. Under UIFSA, the state that originally issued a child support order (here, State B) has continuing, exclusive jurisdiction to modify the order if that state remains the residence of the obligee, the child, or the obligor and all parties do not consent to the jurisdiction of another forum. See UIFSA § 205. See also UIFSA § 603 (“A tribunal of this State shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.”). The wife and daughter continue to reside in State B, and the wife has not consented to the jurisdiction of another forum. Thus, a State A court does not have jurisdiction to modify the State B child support order.
[NOTE: Examinees who do not discuss personal jurisdiction but fully discuss UIFSA may receive full credit.]
Does the State A court have jurisdiction to modify the marital-residence-sale proceeds provision of the State B property-division decree?
UIFSA does not apply to disputes over property division. Thus, the State A court may exercise jurisdiction over the husband’s petition to modify the marital-residence-sale-proceeds provision of the State B divorce decree because it has personal jurisdiction over the wife.
Rule and Application
The State A court in which the husband brought his action has jurisdiction to adjudicate domestic relations issues. The husband’s petition to modify the property settlement is a domestic relations issue. The courts of State A may exercise personal jurisdiction over the wife because she was personally served in State A. See Burnham v. Superior Court, 495 U.S. 604 (1990); see Point One(a).
UIFSA does not apply to divorce property-division disputes. Thus, although a State A court may not adjudicate the husband’s petition to modify his child support obligations, it may adjudicate his property-division claims. (Even though the court has jurisdiction, it may not modify the property-division award on the merits. See Point Two(c).)
May a child support order be modified retroactively?
A child support order may not be modified retroactively.
Rule and Application
State courts have long held that obligations to pay child support ordinarily may not be modified retroactively. “If the hardship is particularly severe, the courts sometimes devised a way to protect the obligor, but in most instances the courts hold that retroactive modification of this kind is beyond their power and indeed the governing statute may so provide.” HOMER H. CLARK, THE LAW OF DOMESTIC RELATIONSHIPS IN THE UNITED STATES 725 (2d ed. 1987).
Federal law now goes further and requires the states, as a condition of federal child-support funding, to adopt rules that absolutely forbid retroactive modification of the support obligation. See 42 U.S.C. § 666(a)(9)(C). The states have adopted rules consistent with the federal requirements.
May a child support order be modified prospectively based on a change of employment with a lower salary?
It is unclear whether the husband could obtain prospective downward modification of his child support based on his voluntary acceptance of a job with a lower salary.
Rule
Prospective modification of a child support order is typically available only when the petitioner can show a substantial change in circumstances. A significant decrease in income is typically viewed as a substantial change. However, when a parent seeks to modify a child support obligation because he has voluntarily reduced his income, a court will not modify the obligation based solely on the income loss. Some courts refuse to modify whenever the income shift was voluntary. See, e.g., Aguiar v. Aguiar, 127 P.3d 234 (Idaho Ct. App. 2005). Others look primarily to the petitioner’s intentions and permit downward modification if he has acted in good faith. See, e.g., In re Marriage of Horn, 650 N.E.2d 1103 (Ill. App. Ct. 1995). Many courts use a multifactor approach. See OLIPHANT & VER STEEGH, supra, 217–18.
Application
Here, there is no question that the husband’s loss of income was voluntary. In a jurisdiction in which voluntary income reduction bars support modification, the husband’s petition would be denied.
In a jurisdiction employing a good-faith or multifactor approach, it is possible, but not certain, that the husband could obtain downward modification. The evidence supports the husband’s good faith: his change in employment appears to be based on his new job’s greater responsibilities and better promotion possibilities. In a jurisdiction using a multifactor approach, the court would likely also consider the impact of such a shift on the daughter, the likely duration of the husband’s income loss, and the likelihood of a promotion that would ultimately inure to the daughter’s benefit. Thus, on these facts, it is possible, but by no means certain, that the husband could prospectively obtain downward modification of his child support obligation to his daughter.
May a property-division order be modified after entry of a divorce decree?
A divorce property-division award is not subject to modification.
Rule and Application
A support order is aimed at meeting the post-divorce needs of the supported individual. Because the future is unpredictable, courts are empowered to modify a support award to take account of changed circumstances that may occur during the period in which support is paid.
By contrast, a property-distribution award divides assets of the marriage based on the equities at the time of divorce. Because the past can be ascertained, a property-division award is not subject to post-divorce modification. See HARRY A. KRAUSE ET AL., FAMILY LAW: CASES, COMMENTS, AND QUESTIONS 691 (6th ed. 2007).
Here, the husband is seeking modification of a property-division award with respect to an asset owned by the parties at the time of divorce. Thus, the husband may not obtain a modification of the marital-residence-sale-proceeds provision of the divorce decree based on his reduced income.
