financial support of spouses and children Flashcards
spousal maintenance (alimony)
one spouse’s monetary obligation to provide the other spouse with support in the form of income; it is awarded if the recipient cannot provide for his own needs
factors to determine amount of spousal maintenance
- financial resources, including property to be awarded in the divorce, child support, spouse’s earning potential, and other spouse’s ability to pay support
- spouses’ standard of living
- time to find employment or complete any education or training necessary for the job
- length of marriage
- contributions to marriage (particularly those that enhanced the earning potential of the other spouse)
- age and physical and mental health of each spouse
- marital misconduct
what are the types of support for spousal maintenance (6)?
(1) lump sum
(2) permanent
(3) limited duration
(4) rehabilitative
(5) reimbursement
(6) palimony
lump sum support
a fixed amount; cannot be modified in the absence of fraud
permanent support
an award for the remainder of the dependent spouse’s life (unless certain circumstances occur); typically awarded only when the marriage was one of long duration (15 years or more)
limited duration support
typically awarded when the marriage was of short duration, but there is still an economic need for support
rehabilitative support
to enhance and improve the earning capacity of the economically dependent spouse; limited period of time, such as until spouse receives education or employment
reimbursement support
to compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future (rarely granted)
palimony support
support provided by one unmarried cohabitant to another after the dissolution of a stable, long-term relationship (available in only a few states)
modification of support
the party seeking modification typically has the burden of establishing a significant and continuing change in circumstances in the needs of the dependent spouse or financial abilities of obligor that warrant the modification
modification of support - willful or voluntary reduction in income
no reduction in support payments
modification of support - death of spouse
terminates support
modification of support - remarriage
if the receiving spouse remarries, support may be terminated
modification of support - cohabitation
if the receiving spouse cohabits with someone who is not family, then spousal support may be modified if the recipient spouse’s need for the support decreases as a result of the cohabitation (not automatic)
modification of support - retirement
effect depends upon jurisdiction
support during marriage - necessaries doctrine/family expenses law
at common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine
a necessary item was something suitable to the parties’ station in life, including medically necessary care.
most jurisdictions have modified the necessaries doctrine to apply equally to both spouse and often refer to them as “family expense” statutes.
a minority of jurisdictions have abolished the doctrine as a violation of equal protection rights; in those jurisdictions retaining the doctrine, a creditor may sue either spouse for payment of necessaries, but it may be required to seek payment first from the incurring spouse.
child’s right to support
both parents, regardless of marital status, are legally required to support their minor children; respective obligations of support are adjusted as physical possession of a child changes between parents
child support - private agreements
parents can enter into private agreements regarding child support payments, but they cannot agree to release or compromise that would negatively affect the child’s welfare
can visitation rights be denied for the nonpayment of child support?
no
nonmarital children - child support
cannot be denied child support, government benefits, or wrongful-death claims
nonmarital children - inheritance of father’s estate
nonmarital children may inherit from their father’s estate so long as paternity is established
how is paternity established in regards to nonmarital children?
paternity can be established via judicial decree or other means such as when the father consents to being named on the birth certificate or acknowledges that he is the child’s father
what evidence is used to establish paternity?
- blood tests ordered by the court
- prior statements regarding paternity by deceased family members
- medical testimony on the probability or improbability of conception
- defendant’s acknowledgement of paternity
time limit on filing of paternity petition
considered unconstitutional unless there is a reasonable opportunity to pursue such an action and the limit is substantially related to the government’s interest in restricting such an action
marital presumption
a child born to a married woman is the child of that woman and her husband
paternity - estoppel
a husband who is not the biological father of his wife’s child may be estopped form denying his obligation to pay child support when:
- there is a representation by the husband that he would provide for the child,
- the wife relied on his representation, AND
- the wife suffered and economic detriment as a result of the reliance
personal jurisdiction over and out-of-state parent
a court obtains personal jurisdiction over and out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (UIFSA)
how is the amount of child support determined?
based on child-support guidelines - determination of parental income typically includes income from any sourse
what are the methods of calculating child support?
(1) income-shares model
(2) percentage-of-income model
income-shares model
a child should receive the same proportion of paternal income as if the parties continued to live together (most states)
percentage-of-income model
determines the minimum amount of child support by using a percentage of the supporting (i.e., noncustodial) parent’s net income, determined by the number of children supported
is the rebuttable presumption that the amount calculated pursuant to the child-support guidelines correct?
yes
what must the court do if they decide to deviate from the amount of support set forth under the child-support guidelines?
the court must set forth specific findings explaining and supporting the deviation
can the payor/obligor of child support monitor how the money is expended?
once a child-support award has been paid, the payor/obligor is not permitted to monitor how the money is spent
child-support - medical insurance
the cost of providing medical insurance for the child is included in the child-support award (most states)
whats is the standard for modifying child support?
a substantial change in circumstances regarding the child’s needs or the parents’ financial situation that is expected to be continuing
when is child support terminated?
child reaches the age of majority (e.g., 18 years of age), child marries, parental rights are terminated, or the child or parent dies
extension of child support
child support can be extended to a child in college or a disabled adult child who is unable to support themself
child support - life unsurance
a parent can be required to buy life insurance on his life for the child’s benefit
child support - emancipation
support may be terminated if a child is emancipated before the age of majority
jurisdiction for modification of child support
a court may not modify a child support order rendered by a court with continuing jurisdiction in another state unless the parties (including the child) no longer reside in the state or the parties expressly agree to permit another state to exercise jurisdiction
if an aspect of a child-support obligation may not be modified under the law of the state that first imposed obligation, that aspect of the obligation may not be modified under the laws of any other state
tax consequences of child support
not income to recipient; not deductible by payor
enforcement of child support - civil contempt
an obligor with the ability to pay may be found in civil contempt and can be sent to jail until the amount owed is fully paid
enforcement of child support - criminal contempt
a jail sentence may be imposed upon an obligor who willingly fails to pay the amount owed
enforcement of child support - other sanctions
interception of tax refund, report to credit bureau, suspension of driver’s/occupational license, seizure of assets, garnishment of wages, ordering payment of attorney’s fees
what Act governs modification and enforcement of interstate child support?
the Uniform Interstate Family Support Act (UIFSA)
when does the Uniform Interstate Family Support Act (UIFSA) apply?
when the obligor or child resides in a jurisdiction different from the one in which the original order was issued
enforcement of child support in other jurisdictions
- once an order is registered in another state, it is enforceable in the same manner and to the same extent as a child-support order issued by the original state
-only the issuing state may modify the original order; the other state’s responsibility is simply to enforce the order
