Financial Support of Spouse and Children Flashcards
Spousal Support
AKA Maintenance or Alimony
- Obligation of one party to provide the other with support in the form of income.
- Can be definite or indefinite
- CANNOT be discharged in bankruptcy
Alimony Factors to Consider
- Financial resources
- Standard of living
- Time
- Length of Marriage
- Contributions to the marriage
- Age and health
- Marital misconduct (weight depends on jx)
Each state determines by statute
Types of Support
- Lump sum
- Permanent
- Limited duration
- Rehabilitative
- Reimbursement
- Palimony
Lump Sum
Alimony
Can’t be change unless fraud)
Permanent Alimony
Primarily uses when one spouse stayed home for kids; in cases of 15 y marriage or more/longer duration
Limited Duration
Alimony
Limited period of time, typically awarded when mariage was of short duration, but still an economic need
Rehabilitative
Alimony
Support for a limited time, until spouse gets education or employment
For example, a spouse may be required to pay rehabilitative alimony for a period of four years while a dependent spouse attends college. The payments would automatically terminate at the end of the four-year period.
Reimbursement
Alimony
- Compensate spouse for financial sacrifices made during marriage that resulted in a reduce standard of living to secure enhanced future standard of living
- Often when one spouse went to school while the other supported them
- Rarely used, some jx treat as a payment of property division
Palimony
Alimony
Available in only a few states, palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship.
Modification of Spousal Suppert
- May be modified (even if Permanent)
- Party seeking modifcation has the burden of establishing significant and continuing change in circumstance
- Party who willfully or voluntarily reduced income will not recieve reduction in support payments
Death
Modification of Spousal Support
Spousal support can continue until death
Remarriage
Modifcation of Spousal Support
Most jurisdications, if receiving spouse remarries, spousal support is terminated (generally not revivable)
Marriage of obligor can consitute a change in circumstances that justifies reduction in spousal support
Cohabitation
Modifcation of Spousal Support
Spousal support may be modified if need for support decreases as a result. But, typically not automatically terminated
Retirement
Modifcation of Spousal Support
Jurisdictions differ:
Some say should have been addressed in divorce proceedings, others say the supported spouse should not expect same benefits after obligor has retired
Spousal Support During Marriage
- Common-law : H obligated to support wife (necessaries doctrine ie suitible to station + necessary medical care)
- Modern Day : BOTH spouses are obliged
- Some jx : abolished for Equal Protection, creditors can sue both spouses for payment of necessaries
Often referred to as Family Expenses statutes
Jurisdiction Requirements
Matrimonial courts
Need PJ and SMJ
State Residency Requirements
Marriage and Divorce
Most states have statutory residency requirements, typically ranging from six weeks to two years, for a court to have subject-matter jurisdiction
Full Faith and Credit Clause
Divorce
Applies to divorce decrees as long as one of the spouses was a resident of the state that granted the decree.
Divisible Divorce Doctrine
A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse.
AKA Ex Parte Divorce
The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff either was not domiciled in the divorcing state at the time that the judgment was granted or left the state’s domicile immediately after the entry of the divorce.
Indigent parties
Divorce
It is unconsitutional to require an indigent party to pay costs and fees to access the system
No legal right to counsel in divorce proceedings, but court has discretion to award fees and costs if unable to afford services of legal counsel
Child’s Right to Support
In all jurisdictions, both parents (custodial and noncustodial), regardless of marital status, are legally required to support their minor children
Some jx go through college, can be continued indefinely for child incapable of self support (mental/physical disability)
Child Support Definition
Child support is the payment by one parent to the other for the support of a common child.
Child Support - Obligations of Parents
- Parents may not bargain away CS payments
- Can privately agree to the extent it does not affect welfare of the child
- Obligations of child support are adjusted as the physical possession of a child changes
Nonmarital Children
Child Support
- Historically not entitled to CS
- Now, intermediate scrutiny applies to such laws
- Now receive child support, benefits, and wrongful death claims if paternity is proven
- Paternity can be established through court orders, acknowledgment (birth cert) or public proclamation by father
Paternity
- Once established, father has rights to custody and visitation
- Duty to support
Establishing paternity
- Blood test (if indegent, at state $)
- Other evidence (prior statements, medical testimony, D’s scknowledgement, resemblence of child)
- Marital Presumption
- Estoppel
Uniform Interstate Family Support Act (UIFSA) Jx
Pj
Governs when a state has personal jx over an out-of-state parent
* personal service
* consent
* past residency with child in the state
* engaged in sexual intercourse in the state, and child may have been concieved by that act
Always discuss UIFSA when multiple states are involved. Every state recognizes it and if a modifcation does not comply with it, then it is not subject to enforcement under the Full Faith and Credit Support Orders Act.
How is amount of Child Support determined?
- Best interests of child
- Age of child
- Special needs
- Assets of both parents
- Standard of living during the marriage
Courts look at these, but may also use an income shares model
Cost of medical insurance is typically included in the award
Income Shares Model
Child should received the same proportion of parental income as if the parties continued to live together
When is Modification of Child Support permissible?
When there has been a substantial change in circumstance regarding the child’s needs or the parents’ financial situation
The parting seeking modification has burden to show substantial change
Voluntary Reductions in Income for Child Support Modifications
If in good faith, the court may reduce the amount.
Generally no though
Child Support Modification; Timing
There is no retroactive reduction, only from the date of the motion forward
Termination of Child Support
- Typically ends when the child turns 18
- If something jurisdictions support may go beyond the age of maturity if the child’s in college (Is this subject to reasonable parental demands)
Child Support Modification: Jurisdiction
- Covered by the UIFSA
- The state that issued the initial support order has continuing exclusive jurisdiction to modify it
Exceptions:
* The parents and child no longer live there or
* The parties expressly agree to permit another state jx
Child Emancipation
- The child must be established as a self-supporting individual
- Must be outside the sphere of influence of parents or indpenetent of their control
- Employment itself does not do this
Emancipation is fact specific. So analyze all the facts.
Enforcement of Child Support
- If a parent moves, they can register the order with the state, and it will recived full faith and credit (ie new state may enforce the order
- Child and spousal support can be enforced through:
1. Civil contempt orders
2. Income withholding
3. Withholding tax refunds
