Family Law Flashcards
Can a spouse petition the court for alimony and child support w/o petitioning for dissolution of marriage?
Yes
What does equitable distribution mean
Upon dissolution, the Court will equitably distribute all the marital assets. Court must strive for equality/ Court has discretion to deviate from “equal” but must provide justification for doing so.
Non- Marital Asset
(1) gift/inheritance named to one spouse
(2) property owned prior to marriage
(3) income earned from property owned prior to marriage
(4) pain and suffering in a tort judgment (except for recovery of medical expenses or lost wages)
(5) anything else agreed to in writing
(6) Non-marital asset commingled with marital asssets
Marital Asset
(1) Assets acquired by either or both spouses during the marriage.
UNLESS it was gifted or devised to an individual spouse by a third party.
(2) Appreciation in value of nonmarital assets as a result of the efforts of the other spouse or the expenditure of marital funds.
(3) Interspousal gifts during the marriage.
E.g., the diamond necklace that H gave to W on their 10th wedding anniversary.
(4) Any retirement assets accrued during the marriage.
Retirement assets accrued prior to the marriage are not part of the pool.
(5) Real property held as T by E, even if purchased with nonmarital funds, unless spouse can prove it wasn’t meant as a gift
(6) Marital home 0 if kids, court will try to give marital home to primary caregiver
What should court consider in dividing marital assets
Contribution to the marriage;
Contribution to care and education of children;
Services of the homemaker, contribution to the career or other spouse;
Economic circumstances;
Duration of the marriage;
Career and education sacrifices; and
Desirability of retaining asset free from hostile interference from the other spouse.
Waste of martial assets
Date for determining martial assets
(i) date provided by sep agreement; (ii) date of filing dissolution (iii) any other date court determines. Court decides what date to value assets, and may use different dates for different assets.
May a court order an interim partial distribution of assets and liabilities ?
Yes, upon a showing of good cause, but must make a specific finding that it will not cause prejudice or inequity to other party
Main consideration for alimony - court must make specific finding
Need vs. ability to pay
Types of Alimony
Powerful Blue Ribbon Divorce Party
(P)endente lite (B)ridge–the–gap (R)ehabilitative (D)urational (P)ermanent
Pendente Lite
Covers immediate living expenses and costs during the pendency of the dissolution proceedings.
Always available, if there is need by one spouse and ability to pay by the other.
Bridge-the-Gap
To assist one spouse in the transition from being married to being single.
When you go from being married to being single, you now need two of everything:
Two homes; Two beds; Two sets of dishes.
Maximum duration of two years.
Once the order is entered, it cannot be modified in amount or duration.
Terminates upon death or remarriage
Rehabilitative
To assist one spouse in obtaining education or training necessary to become self–sufficient.
-There must be a specific rehabilitative plan.
-Award can be modified or terminated if:
=Change in circumstances; or
=Noncompliance with rehabilitative plan; or
=Completion of rehabilitative plan.
Durational
awarded when permanent alimony is inappropriate. Periodic payments awarded for a definite period of time not to exceed the length of the marriage.
Length of time cannot be modified, but the amount can upon a showing of substantial change in circumstance.
Terminated upon death or remarriage of recipient.
Permanent
Awarded if a spouse lacks financial ability to be self–sustaining.
Marriage of Long Duration (17 or more): awarded if appropriate upon consideration of the statutory factors.
Marriage of Moderate Duration (7-17): awarded if appropriate upon clear and convincing evidence of need based upon the statutory factors.
Marriage of Short Duration (less than 7): there must be written findings of exceptional circumstances.
The court must issue a finding that no other form of alimony is fair or reasonable under the circumstances (ABSOLUTELY NUCLEAR OPTION).
Permanent alimony precludes receipt of any other form of alimony, except pendente lite.
Award may be modified or terminated upon substantial change in circumstances or existence of supportive relationship
Factors to determine whether to award durational or permanent maintenance
SAD FRET ME
(1) Standard of living during the marriage;
(2) Age and health of parties
(3) Duration of the marriage
(4) Financial resources and sources of income
(5) Responsibilities of minor children
(6) Earning capacities, education, vocational skills
(7) Tax treatment
(8) Marital contribution; and
(9) Equity (any factors that foster equity).
May adultery be considered in awarding maintenance?
Adultery may be considered if it contributed to depletion of assets.
Attorney’s Fees
Attorney’s fees can also be awarded based on the same considerations as pendente lite:
NEED vs. ABILITY TO PAY.
Contempt
obligor must have had the present ability to comply with the order but willfully failed to do so. Burden is on obligor that he does not have ability to pay.
Modification
must show substantial change in circumstances and unanticipated at time of judgment, and address whether it is permanent.
Prenuptial agreement
Generally valid.
Subject to the statute of frauds (writing, signed by both parties).
No consideration is required, other than the marriage.
Will be closely scrutinized for good faith, fraud, undue influence, or duress.
-Can be held invalid if party was not provided reasonable disclosure of assets or
The agreement must be fair in its terms OR must be accompanied by a full disclosure of all assets.
Prenuptial Agreements cannot determine
Uniform Premarital Agreement Act
- spousal support if causes one party to need public assistance
- child support
- custody
Post Nuptial Agreement
Couples are free to enter into contracts after marriage.
-These agreements are generally valid.
-Not automatically subject to the statute of frauds.
HOWEVER, if the statute of frauds applies to the subject matter of the contract (i.e., land), then the statute of frauds will apply.
- Will be closely scrutinized for good faith, fraud, undue influence, or duress.
- Full financial disclosure MUST be given with ALL postnuptial agreements, even if the agreement is fair in its terms.
- right to receive child support cannot be waived
Waiver of right to receive alimony in Post Nuptial Agreement
- may be expressly waived for consideration.
- If no consideration, right to alimony survives
- temporary alimony cannot be waived
What can definitively be waived in a pre or post nuptial agreement
- division of property
- homestead rights
What court has jurisdiction to hear dissolution matters?
Circuit Court and FRCP applies unless otherwise noted.
• Court must have personal jurisdiction in order to enter economic orders such as alimony and property distribution
When can court order counseling
If there is a minor child, or one party denies that the marriage is “irretrievably broken,” court may take steps to encourage reconciliation:
- Order marriage counseling;
- Continue the proceedings for up to 3 months to enable reconciliation; or
- Take other actions that are in the best interest of the parties or minor children of the marriage
Child support
-ends at 18
Exceptions
-child is 19 and still in HS
- child is physically or mentally dependent
How is child support determined?
By reference to statutory guidelines
Can court deviate from guidelines?
Yes, but a departure of more than 5% requires that the court enter written findings and justification for the deviation.
What will court consider in determining whether to order an amount below the guidelines
- extraordinary medical or educational expenses
- child’s age
- parental arrangements for custody
Can a court impute income?
o Court can impute income:
Willful unemployment or underemployment—court computes child support based on earning capacity
Parent fails to provide financial information
But, court does not have to impute income if it finds that party needs to stay home to care for child. And income cannot be imputed to a level a party never earned in the past, or on records over 5 years old.
When is modification of child support available?
-Substantial change in circumstances
What about provisions for medical insurance?
o Must always contain a provision regarding health insurance. Court MUST apportion payment of unreimbursed medical and dental expense.
What MUST be contained in a child support order
- provide for c.s. to terminate on 18th birthday
- provide schedule of payments after one or more children no longer entitled to receive support
- provide specific date for termination or reduction.
Is the proof required to modify an agreement the same as that required to modify a court order?
Yes
Can the court reduce a past due installment of child support?
No
Factors considered in determining a substantial change in circumstance
- financial ability
- compliance with c.s. guidelines
- (must be a 15% or $50 difference between guidelines and past award
- voluntary retirement, among other things
When can a court modify temporary support order?
Upon a showing of good cause.
When can the court refer parties to mediation
In any proceeding in which parental responsibility, time-sharing or support is contested
