Family law essay questions format Flashcards
How to explain equitable distribution in an essay question
The objective of the equitable-distribution system is to order a fair distribution of all marital property, considering all of the circumstances between the parties. In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor
Is apreciation of property always marital property?
No. This is an example:
Here, the condominium is separate property because the woman acquired it before the marriage. Although the value of the condo has increased, this was a result of market appreciation, and not the result of spousal labor or the contribution of marital assets. Thus, the condo and its increase in value are the woman’s separate property and not divisible.
What about brokerage accounts? Is the increase in value marital property?
Continuing with example:
Most of the woman’s brokerage account is separate property because she acquired it before the marriage. In addition, some of the appreciation of the brokerage account is due to mere market appreciation and is not divisible. However, the woman also contributed employment bonuses that she received during the marriage. Thus, the brokerage account is divisible to the extent of the woman’s contributions during the marriage.
Are royalties for a book that will be paid after the divorce marital property?
Yes. Most, if not all, of the man’s future royalties from the sale of his novel will be considered divisible marital property. Although the man began the novel before the marriage, he continued to work on it and finished it during the marriage. While working on his novel, the man only worked part-time in a paid position and lived with the woman in her condo. Based on these circumstances it is likely that the woman significantly contributed to the man’s ability to publish his novel. As such, at least part of the royalty payments should be subject to division.
Are lottery winnings marital property?
Depends:
Lastly, the woman’s lottery winnings are likely marital property subject to equitable distribution. In most states, property acquired by one spouse after separation but before divorce is marital property. Here, the couple had separated when the woman had won the jackpot, but the man had not filed a divorce action. Thus, in most jurisdictions, the winnings are considered marital property subject to equitable distribution.
The issue is which factors the court should consider in distributing marital property.
Courts consider a number of factors in determining the equitable distribution of marital property. Some of the relevant factors, in this case, include the length of the marriage, the age, health, earning potential, and needs of both spouses, the value of the separate property, the spouses’ standard of living, and the economic circumstances of each spouse at the time of divorce.
In this case, the woman made much larger financial contributions through her employment and also provided for their shared home. The man appears to have made less of a financial contribution, and there is no indication that he made other contributions to the household as a parent or homemaker. Although the woman appears to have significantly more assets, it is difficult to predict the extent of the man’s future success as an author. The court is given broad discretion to consider these factors in making a property division.
Second example
Can a separation agreement be invalidated>?
yes.
Separation agreements can be invalidated, in whole or in part, if the court makes a finding of fraud or unconscionability. A contract is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise.
How to argue unconscionability in an essay
It appears that Husband’s willingness to sign the separation agreement stemmed from his impending marriage to Fiancée and he now regrets the bargain he entered into. Both parties were represented by counsel and there is no evidence that either party failed to make a full disclosure of assets. Nor is it clear that Husband entered into a bad bargain. Under the agreement, Husband is required to pay $10,800 per year or approximately 13% of his total income in combined spousal and child support. That percentage is less than would be required for child support alone under many state child support guidelines. The facts here do not provide any basis for a finding of unconscionability. Therefore, it is unlikely that the court erred in denying the petition to invalidate the separation agreement regarding spousal support and property division.
However, it is less clear that the court was correct to deny the petition to invalidate the child-support portion of the agreement. Husband has discovered that he is not the biological parent and it is possible that Wife’s failure to inform Husband was a fraudulent misrepresentation on her part. Thus, it is possible for a court to find that Wife’s conduct was sufficient to invalidate the child support provision.
How to argue in an essay if a separation agreement about can be modified post divorce
Though a support award can be modified subsequent to a divorce decree, the property division award cannot be modified. Unlike support awards, which are subject to changing circumstances, the division of the marital assets was determined based upon known facts and circumstances as they existed at the time of divorce. Therefore, the court did not err in denying the motion to modify the divorce decree as it pertained to marital assets.
2.(b) The issue is whether there has been a significant change in Husband’s circumstances that justifies a modification of the spousal support award.
Spousal support awards can be modified based upon a significant change in a party’s circumstances. Here, Husband had been living with Fiancée and her children prior to the time he signed the separation agreement and he was well aware of their support needs. His decision to sign the original separation agreement was made with full knowledge of the support obligations he would be taking on upon his marriage to Fiancée, and he cannot now claim that those new obligations are changed circumstances that would support a modification of the spousal support award. Therefore, the trial court did not err in denying Husband’s motion to modify the divorce decree on spousal support.
