Financial consequences of dissolution Flashcards
What is the marital property regime of common law.
during marriage, all property belongs to spouse who acquires it (including any property derived from that property such as profits)if kept separate.
-Separate property can become marital property.
What is the marital property regime of community property
marriage is an equal partnership; each spouse has undivided ½ interest in property acquired by spousal labor
what is equitable distribution regime
i. During marriage = property is separately owned by each spouse who acquires it
1. most assets acquired during the lifespan of the marriage are separately owned UNTIL divorce where they become marital assets and are equitably divided
ii. At Divorce = court makes equitable distribution of marital property owned by each spouse
1. Equity does NOT mean 50/50
What marital property regime does FL follow
c. Equitable distribution (FL) – NEED TO KNOW FOR EXAM
i. During marriage = property is separately owned by each spouse who acquires it
1. most assets acquired during the lifespan of the marriage are separately owned UNTIL divorce where they become marital assets and are equitably divided
ii. At Divorce = court makes equitable distribution of marital property owned by each spouse
1. Equity is NOT 50/50
iii. Distribution Process:
1. Court sets aside nonmarital assets and liabilities (separate property) from marital property
a. Separate = usually those acquired before the marriage
2. Court starts at 50/50 distribution and adjust based on factors (if necessary)
iv.
Factors: (in FL statute)
1. Contributions by each spouse (including childcare/homemaker)
2. Economic circumstances
3. Duration of the marriage
a. Short term marriage = less than 7 years
b. Moderate term marriage = 7-17 years
c. Long term marriage = anything greater than 17 years
4. Interruptions of personal careers or educational opportunities of either party
5. Contribution of one spouse to the personal career and educational opportunity of other spouse
6. The desirability of retaining any asset, (ex: interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party)
7. The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties
8. Desirability to retain marital home (spouse with custody of children may reside in the house until age 18 or HS graduation – looks at best interest of child – then house is sold and split 50/50)
9. The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition (comes up often with adultery)
10. Any other factors necessary to do equity and justice between the parties (catch- all)
What are dissapated assets
i. When one spouse disposes of assets (usually to a new paramour)
ii. Not normally awarded as “alimony”
iii. Normally considered in division of property (counted against share of dissipating spouse)
iv. Courts have to determine what expenses are dissipated assets
Distribution under the UMDA
Distribution under ALI
a. Doesn’t consider dissipation of assets
b. also disregards fault (except economic misconduct)
what are the differences between Spousal Support & Property Division:
a. Property distribution looks backwards — Alimony/Spousal Support looks forward
b. Modifiability:
i. spousal support can be modified
ii. property distribution cannot be modified
c. Terminability:
i. spousal support ends on remarriage or death
d. Enforcement by contempt power:
i. spousal support
e. Discharge in bankruptcy
i. traditionally, spousal support & child support were non-dischargeable
What is alimony
i. Money paid in fulfillment of duty to support former spouse
ii. Payable after legal separation, divorce, and sometimes annulment
- alimony does not consider fault
What are the types of alimoney
1.Alimony Pendente Lite: Temporary alimony during litigation.
2. Rehabilitative Alimony: Limited amount and has a termination date.
3. Reimbursement Alimony: Pays ex-spouse who made financial contributions to marriage for other spouse’s training or education.
4. Limited duration Alimony: Until designated date.
5.Permanent Alimony: Indefinite date.
how to determine alimony
f. Alimony Steps in Florida:
i. First step: court must determine need versus ability to pay
ii. Second step: court determines the type of alimony to award and amount
g. On Exam:
i. 1) Is there a need?
ii. 2) Is there an ability to pay?
iii. 3) What type of alimony and how much?
1. consider length of marriage & other factors
a. Length of marriage:
i. Short term marriage – less than 7 years
ii. Moderate term marriage – 7- less than 17 years
iii. Long-term marriage –17 years or longer
what is the Role of fault in alimony
- 1) economic misconduct (dissipation of assets)
- 2) egregious conduct (attempted murder or intentional infliction of STD)
spousal support under the UMDA
Spousal support is disfavored remedy
*Available in limited circumstances
➢Spouse is unable to provide self-support
➢Spouse lacks sufficient property to provide for her reasonable needs ➢Spouse is custodian of a child whose circumstances require that she not seek outside employment
- Awarded only when equitable distribution fails to achieve economic justice
what is the test for modification of spousal support
substantial or material change in circumstances
-note: property awards are final.
what is considered a substantial change of circumstances in spousal support
*Cohabitation: Many states say that spousal support can be reduced or terminated if payee cohabits.
– Burden on payor to prove by a preponderance of the evidence that supportive relationship (and cohabitation) exists
➢Automatic termination under (UMDA s307)
*remarriage: UMDA and some states automatically terminate support upon payee’s remarriage
—— - other states take discretionary approach i.e. remarriage terminates spousal support only when remarriage produces a substantial change in economic circumstance (alters payee’s need)
*Automatic termination: Many states (like UMDA) terminate spousal support
➢upon the death of either party or ➢remarriage of the payee-spouse
➢absent contrary agreement