Financial Support of Spouses and Children Flashcards
Spousal Support (Generally)
The obligation of one spouse to provide financial support to the other in the form of income. Arises when one spouse cannot support themselves with their own employment or assets. Can occur at any time or even during a marriage, and can last any length of time.
Note: CANNOT be discharged in bankruptcy. It CAN be waived for other consideration.
Factors to Determine Spouse Support
1) Financial resources of both parties
2) Standard of living during marriage
3) Time it will take for receiving spouse to find employment or finish education
4) Length of marriage
5) Contributions to marriage
6) Age and health of both parties
7) Marital misconduct such as adultery
Types of Spousal Support
1) Permanent Alimony: an award for the remainder of the dependent spouse’s life. Typically only appropriate after long marriages. Primarily used when one spouse remained out of the workforce to take care of the home or children.
2) Limited-Duration Alimony: typically awarded when the marriage was of short duration.
3) Rehabilitative Support: a limited period of time, such as until the spouse receives education or employment.
4) Reimbursement Alimony: compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living in order to secure an enhanced standard of living in the future.
Modification of Spousal Support
In general, spousal support can be modified even when it has been declared to be “permanent.”
The party seeking modification has the burden f establishing a SIGNIFICANT AND CONTINUING CHANGE IN CIRCUMSTANCES that warrants the modification.
If the paying spouse VOLUNTARILY reduces their income, generally a court will not reduce their obligation to the receiving spouse.
But if the paying spouse incurs new obligations, then the court may consider modification.
If the receiving spouse remarried, then most jurisdictions will terminate the spousal support.
Jurisdictional Issue: Divisible (Ex Parte) Divorce
Generally, a court must have both subject matter jurisdiction and personal jurisdiction to decide a family law dispute.
A state court may grant a divorce to one spouse if she is domiciled in the state, even if it does not have personal jurisdiction over the other spouse.
States are required to give full faith and credit to divorce decrees issued in other states.
IMPORTANT: The court can grant the divorce to one party, but it does NOT have jurisdiction to address PROPERTY DIVISION, SPOUSAL SUPPORT, OR CHILD SUPPORT, unless their is PJ over the out-of-state spouse.
Child’s Right to Financial Support From Parents
Both parents re legally required to support their minor children and parents CANNOT bargain away child-support payments in premarital or settlement agreements.
Visitation rights cannot be denied for nonpayment of support.
Uniform Interstate Family Support Act (UIFSA)
The UIFSA governs when a state has personal jurisdiction over an out-of-state parent in an action to establish or enforce child support or establish paternity.
A court will be found to have personal jurisdiction over an out-of-state parent in various situations, including when the out-of-state parent:
- is personally served within the state or consents to jurisdiction; or
- resided with the child in the state in the past; or
- engaged in sexual intercourse in the state, and the child may have been conceived by that act of intercourse.
Paternity
Once paternity is established, gives rise to: the rights to custody and visitation, and the duty to support.
A court may order a paternity test and may pay for indigent clients. If there’s no paternity, then the child support case filed against the individual is dismissed.
Other evidence to establish paternity: prior statements by deceased family members, medical testimony based on the probability of conception; the D’s own knowledge of paternity; the physical resemblance between the child and the D.
There is no time limit on filing a paternity claim.
Marital Presumption
A child born to a married woman is presumed to be the child of the woman’s spouse.
Presumption applies in cases of artificial insemination.
Estoppel - Paternity
A husband who is not the biological father may be estopped from denying his duty to pay child support if:
1) the husband promised to provide for the child;
2) the wife relies on that promise; and
3) the wife would suffer economic detriment from relying on that promise.
This cannot be used to block the bio father of his rights.
Amount of Child Support
All jurisdictions have adopted child support guidelines (most use an income-shares model).
Courts may deviate from the model based on specific factors:
1) the best interests of the child
2) age of the child
3) special needs
4) assets of both parties
5) standard of living during marriage
Modification of Child Support
Child support modifications are permissible when THERE IS A SUBSTANTIAL CHANGE IN CIRCUMSTANCES regarding the child’s needs or the parents’ financial situation.
Voluntary reduction of income– if in good faith, the court may reduce the amount owed; if done to deprive the child or punish the parent in bad faith, the court might not reduce the obligation.
Timing:
- A court will only modify child support payments PROSPECTIVELY and NOT retroactively.
Termination of Child Support
Ends automatically when child reaches age of majority (typically, 18).
Court might order support beyond the age of majority if the child is still in high school; cannot support himself due to disability; or goes to college (some jurisdictions).
Child support can also be terminated when:
- child marries
- child emancipation
- termination of parental rights
- child dies
- parent dies (note: courts can require a life insurance policy)
Jurisdiction Over Existing Child Support Obligations
Under the UIFSA, the state that ISSUED the INITIAL child support order has continuing exclusive jurisdiction to modify the child support order.
Exceptions:
- The parties and the child no longer reside in the state; or
- The parties expressly agree to permit another state to exercise jurisdiction.
If a receiving parent moves to a new state, they may register a child support order in the new state, which will give full faith and credit to the support order. The new state can ENFORCE the support order (BUT ONLY the initial issuing state may modify the order).
