Financial Support of Spouses and Children

Question 1

What is spousal maintenance (alimony)?

Answer 1

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

Question 2

What are the factors that go into spousal maintenance?

Answer 2

Typically include financial resources including
-> property to be awarded in the divorce
-> Child support
-> Spouse’s earning potential
-> Other spouse’s ability to pay support
-> Spouse’s standard of living
-> Time to find employment or complete any education or training necessary for a 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

Question 3

What are the six types of spousal support? When are they granted, for what reason?

Answer 3

Lump sum
-> a fixed amount

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

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

Question 4

When can a lump sum payment for spousal support be modified?

Answer 4

Cannot be modified in the absence of fraud

Question 5

What is the burden of proof the moving party has show in order to modify spousal support?

Answer 5

The party seeking modification typically has the burden of establishing a significant and continuing change in circumstances in the need of the dependent spouse or financial abilities of the obligor that warranted the modification.

Question 6

What actions on the part of the obligor will prohibit spousal support from being modified?

Answer 6

Willful or voluntary reduction in income -> no reduction in support payments

Question 7

What are common situations that will allow for modification of spousal support?

Answer 7

Death of spouse -> terminates support

Remarriage -> if the receiving spouse remarries, support may be terminated

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)

Retirement -> effect depends upon jurisdiction

Question 8

What is the necessaries doctrine?

Answer 8

Support during marriage for family expenses (both spouses) is something that both spouses are liable for.

Question 9

What are the child’s right to support?

Answer 9

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

Question 10

Can visitation rights be denied for failure to pay child support?

Answer 10

Never.

Question 11

Can parents enter into private agreements regarding child support? If so, do such agreements have limitations?

Answer 11

Parents can enter into private agreements regarding child support payments, but they cannot agree to any release or compromise that would negatively affect the child’s welfare

Question 12

How does child support work for non marital children?

Answer 12

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

May inherit from their father’s estate so long as paternity is established

Question 13

What evidence can establish paternity?

Answer 13

Evidence to establish paternity
- blood tests ordered by the court
- judicial decree
- prior statements regarding paternity by deceased family members
- medical testimony on the probability or improbability of conception
- defendant’s acknowledgement of paternity
- defendant’s acknowledgment to be listed on child birth certificate

Question 14

Can a time limit be placed on a paternity petition?

Answer 14

A time limit is unconstitutional unless there is a reasonably opportunity to pursue such an action and the limit is substantially related to the government’s interest in restricting such an action (e.g. prevention of fraudulent claims).

Question 15

What is the marital presumption under paternity?

Answer 15

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

Question 16

How does estoppel work under paternity?

Answer 16

A husband who is not the biological father of his wife’s child may be estopped from 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 an economic detriment as result of the reliance

Question 17

How does a jurisdiction get personal jurisdiction over an out-of-state parent?

Answer 17

A court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act.

Question 18

How is the amount of child support determined?

Answer 18

Based on child-support guidelines
-> determination of parental income typically includes income from any source

Methods of calculating support
-> income-share model - a child should receive the same proportion of parental 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

Question 19

Can the court deviate from child-support guidelines?

Answer 19

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

SO

If the court decides to deviate from the amount set forth under the guidelines, it must set forth specific findings explaining and supporting the deviation

Question 20

Once the obligor pays the child-support, are they able to monitor the way the money is spent?

Answer 20

Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended

Question 21

Is the cost of providing medical insurance included in the child support award?

Answer 21

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

Question 22

What is the standard used to determine whether child support can be modified?

Answer 22

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

Question 23

Under what circumstance is child support never modifiable?

Answer 23

Most jurisdictions -> no reduction for voluntary reduction in the obligor’s pay

Question 24

When is child support terminated?

Answer 24

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

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

Question 25

What kind of extensions prolong the duration of child support?

Answer 25

Extensions -> child in college, disabled adult child who is unable to support himself

Question 26

What type of insurance might a parent be obligated to purchase under child support?

Answer 26

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

Question 27

When can another state modify the child support decree from a different state?

Answer 27

A court may not modify a child support order rendered by a court with continuing jurisdiction in antlers state

UNLESS the parties (including the child) no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction

Question 28

What happens if the original state prohibits modification regarding an aspect of child support, but a latter jurisdiction allows such a modification? Can the modification happen?

Answer 28

If an aspect of a child-support obligation may not be modified under the law of the state that first imposed the obligation, that aspect of the obligation may not be modified under the laws of any other state

Question 29

What are the tax consequences of child support?

Answer 29

Not income to recipient, not deductible by payor

Question 30

How are awards enforced?

Answer 30

Civil contempt -> an obligor with the ability to pay may be found in civil contempt and can be sent to jail under the amount owed is fully paid

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

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

Question 31

How is enforcement in other jurisdictions of child support done?

-> Governed by which law

-> When does this law apply

-> To what extent is it similarly or differently enforceable in another state

-> what can the other state do in regards to the child support order

Answer 31

-> modification and enforcement of interstate child support is governed by the Uniform Interstate Family Support Act

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

-> once an order is registered in another state it is enforceable in the same manner and to the same extend as a child-support order issued by the original state

-> only the issuing state may modify the original support order; the other state’s responsibility is simply to enforce the order