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Family Law > financial support of spouses and children > Flashcards

financial support of spouses and children Flashcards

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1
Q

spousal maintenance (alimony)

A

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

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2
Q

factors to determine amount of spousal maintenance

A
  • 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
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3
Q

what are the types of support for spousal maintenance (6)?

A

(1) lump sum
(2) permanent
(3) limited duration
(4) rehabilitative
(5) reimbursement
(6) palimony

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4
Q

lump sum support

A

a fixed amount; cannot be modified in the absence of fraud

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5
Q

permanent support

A

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)

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6
Q

limited duration support

A

typically awarded when the marriage was of short duration, but there is still an economic need for support

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7
Q

rehabilitative support

A

to enhance and improve the earning capacity of the economically dependent spouse; limited period of time, such as until spouse receives education or employment

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8
Q

reimbursement support

A

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)

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9
Q

palimony support

A

support provided by one unmarried cohabitant to another after the dissolution of a stable, long-term relationship (available in only a few states)

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10
Q

modification of support

A

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

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11
Q

modification of support - willful or voluntary reduction in income

A

no reduction in support payments

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12
Q

modification of support - death of spouse

A

terminates support

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13
Q

modification of support - remarriage

A

if the receiving spouse remarries, support may be terminated

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14
Q

modification of support - cohabitation

A

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)

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15
Q

modification of support - retirement

A

effect depends upon jurisdiction

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16
Q

support during marriage - necessaries doctrine/family expenses law

A

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.

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17
Q

child’s right to support

A

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

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18
Q

child support - private agreements

A

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

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19
Q

can visitation rights be denied for the nonpayment of child support?

A

no

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20
Q

nonmarital children - child support

A

cannot be denied child support, government benefits, or wrongful-death claims

21
Q

nonmarital children - inheritance of father’s estate

A

nonmarital children may inherit from their father’s estate so long as paternity is established

22
Q

how is paternity established in regards to nonmarital children?

A

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

23
Q

what evidence is used to establish paternity?

A
  • 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
24
Q

time limit on filing of paternity petition

A

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

25
Q

marital presumption

A

a child born to a married woman is the child of that woman and her husband

26
Q

paternity - estoppel

A

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

27
Q

personal jurisdiction over and out-of-state parent

A

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)

28
Q

how is the amount of child support determined?

A

based on child-support guidelines - determination of parental income typically includes income from any sourse

29
Q

what are the methods of calculating child support?

A

(1) income-shares model
(2) percentage-of-income model

30
Q

income-shares model

A

a child should receive the same proportion of paternal income as if the parties continued to live together (most states)

31
Q

percentage-of-income model

A

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

32
Q

is the rebuttable presumption that the amount calculated pursuant to the child-support guidelines correct?

A

yes

33
Q

what must the court do if they decide to deviate from the amount of support set forth under the child-support guidelines?

A

the court must set forth specific findings explaining and supporting the deviation

34
Q

can the payor/obligor of child support monitor how the money is expended?

A

once a child-support award has been paid, the payor/obligor is not permitted to monitor how the money is spent

35
Q

child-support - medical insurance

A

the cost of providing medical insurance for the child is included in the child-support award (most states)

36
Q

whats is the standard for modifying child support?

A

a substantial change in circumstances regarding the child’s needs or the parents’ financial situation that is expected to be continuing

37
Q

when is child support terminated?

A

child reaches the age of majority (e.g., 18 years of age), child marries, parental rights are terminated, or the child or parent dies

38
Q

extension of child support

A

child support can be extended to a child in college or a disabled adult child who is unable to support themself

39
Q

child support - life unsurance

A

a parent can be required to buy life insurance on his life for the child’s benefit

40
Q

child support - emancipation

A

support may be terminated if a child is emancipated before the age of majority

41
Q

jurisdiction for modification of child support

A

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

42
Q

tax consequences of child support

A

not income to recipient; not deductible by payor

43
Q

enforcement of child support - civil contempt

A

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

44
Q

enforcement of child support - criminal contempt

A

a jail sentence may be imposed upon an obligor who willingly fails to pay the amount owed

45
Q

enforcement of child support - other sanctions

A

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

46
Q

what Act governs modification and enforcement of interstate child support?

A

the Uniform Interstate Family Support Act (UIFSA)

47
Q

when does the Uniform Interstate Family Support Act (UIFSA) apply?

A

when the obligor or child resides in a jurisdiction different from the one in which the original order was issued

48
Q

enforcement of child support in other jurisdictions

A
  • 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

Family Law (6 decks)

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