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Family Law > PROPERTY DIVISION/ SUPPORT > Flashcards

PROPERTY DIVISION/ SUPPORT Flashcards

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1
Q

2 MAIN PROPERTY QUESTIONS

A
  1. what property is subject to division at divorce?

2. what share of property should each spouse receive?

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2
Q

FACTORS IF GIFT OR COMMUNITY PROPERTY

A
  • source of money that bought gift
  • intent of donor at time as to intended use of
  • status of marriage relationship at time of transfer
  • any valid agreement that transferred property was to be excluded
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3
Q

SEPARATE BECOMES MARITAL WHEN

A

COMMINGLE–> one spouse receives a gift of money and puts it in acct. where she normally puts earnings

TRANSMUTED–> money deposited in joint bank acct there is a presumption owner intended to make gift to the marital estates

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4
Q

UNIVERSAL COMMUNITY PROP

A

MINORITY

-all property owned by EITHER or BOTH subject

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5
Q

MARITAL PROPERTY

A

MAJORITY

-during, subject to division other than GIFTS, BEQUESTS, OR INHERITANCE

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6
Q

FRINGE BENEFITS

A

ex. army benefits

  • not GIFTS, earned as COMPENSATION
  • if earned DURING–> community
  • if earned BEFORE–> separate, even IF paid out during
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7
Q

PASSIVE APPRECIATION

A

-appreciation not due to spouses efforts–> remains SEPARATE

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8
Q

ACTIVE APPRECIATION

A

-based on EFFORTS or INCOME of spouse

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9
Q

APPORTIONMENT CALCULATIONS

A 
nmc= non marital contrib
mc= marital contrib
tc= sum of non marital and marital contrib
e= equity in prop at time of distrib.

nmc/tc X e = NON MARITAL PROPERTY
mc/tc X e= MARITAL PROPERTY

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10
Q

INSURANCE CLAIMS

A

-if separate property, insurance payout does not become community

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11
Q

INSURANCE CLAIMS (OPPOSITE VIEW)

A
  • EXTREME MINORITY
  • age, educ. background, contributions prior, etc
    ex. old people, it might be necessary to apportion
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12
Q

PENSION–>

DEFINED BENEFIT

A

-employer agrees to pay empl.who satisfi. min. plan req.

  1. formula = SALARY x YEARS
  2. paid by employer
    • UNVESTED–>
      • dies or gets fired
      • contingent interest
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13
Q

PENSION–>

DEFINED CONTRIBUTION

A

-separate account maintained for each employee

FORMULA = % of salary + company profits

  • what employee contrib.
  • vest immediately
  • can be funded solely by employ. or boss
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14
Q

TAGGART V TAGGART MAJ. IN FLORIDA

A

retirement benefits are subject to division as vested continent community property rights even though the present rights have not fully matured

VACATION TIME–> during marriage, if option to receive time in cash - DIVISIBLE

STOCK OPTIONS/BONUSES –> if they represent compensation of marital employment

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15
Q

RESERVED JURISDICTION/ DEFERRED PAYMENT

A

if post divorce the pension increases due to a promotion
SOME–> former spouse not entitled to any BUT may ask for adjust
OTHERS–> flat out reject this and do not permit this
OTHERS–> treat divorce as the day the party was retiring, therefore property ceases to accrue profit

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16
Q

PRESENT VALUE

A

NON TITLE receives the value of his or her share of the pension at the time of the divorce

17
Q

GASTINEAU RULE

A

if you voluntarily BREACH that would other be marital they count against the person who broke contract

18
Q

ECONOMIC FAULT

A

economic fault or dissipation should be considered AT DIVORCE- MOST STATES

-if know ending, and destroy, waste, or sell property in BAD FAITH, then held against the spouse

19
Q

DISSIPATION DOCTRINE

A

forces spouse who dissipates property to bear full amount of loss

  • intended to deter spouse from PURPOSEFUL destroying
  • doesnt apply to PAYMENT OF LEGIT DEBT
  • GAMBLING usually considered dissipation
20
Q

ALIMONY

A
  • duty of support continues even after marriage over

- only changed as MATTER OF LAW

21
Q

PROPERTY V ALIMONY

A

ALIMONY–>

  • income and taxable
  • cant have longer than the length of marriage

PROPERTY–>

  • not modifiable
  • not terminable upon remarriage
22
Q

REHAB. ALIMONY

A

enable REC. SPOUSE to estab. CAPACITY for self support commensurated with the STAND. OF LIVING estab. during course of marriage, through REDEV. of old skills or need to learn new skils

**HAS A SPECIFIC PLAN

23
Q

PERM. MODIFICATION

A

husband has burden to prove:

  • INVOL. and NOT PREV. CONTEMPLATED
  • SUBST.
  • MATERIAL n PERM. change in finan. circum.
  • not contemplated in final judg. of dissolution

GOOD FAITH test when circum. TEMPORARY

  • not only incur reductions in income BUT
  • act in good faith to return income to previous level

IF VOLUNTARILY UNDER EMPLOYED, alimony will be imputed

24
Q

ALIMONY STANDARDS

A
  • TAXABLE as income to the recipient
  • MODIFIABLE
  • terminates upon marriage of R (generally)
  • not discharged in BANKRUPTCY
  • failure to pay
25
Q

PROPERTY STANDARDS

A
  • NOT taxable
  • MODIFIABLE
  • NOT TERM. upon remarriage
  • only some DISCHARGED in bankruptcy
26
Q

TYPES OF ALIMONY

A

BRIDGE THE GAP

REHABILITATIVE

DURATIONAL

PERMANENT

27
Q

BRIDGE THE GAP

A

aid recipient spouse in making transition from MARRIED to SINGLE

  • PURPOSE- transit., less than or equal 2 yrs
  • REQ.- legit, idenfiable, short term needs
  • NOT MOD. in AMOUNT or DURATION
  • TERM. upon death fo EITHER or REMARRIAGE of recip.
28
Q

REHABILITATIVE

A
  • PURPOSE- gain skills/educ. for economic self sufficiency
  • TERM or MODIFIABLE-
    • subst. change of circums.
    • non compliance with REHAB PLAN
    • COMPLETION of plan
29
Q

DURATIONAL

A

-PURPOSE- econ. assist. when need is less than perm.
-WHEN USED-
short term < 7
moderate < 17
long term > 17, where needs not perm
-NOT MODIFIABLE except EXCEPT. CIRCUM.
total duration cannot exceed # of yrs married
-TERM–> upon death of EITHER or remarriage of recip.

30
Q

PERMANENT

A

-PURPOSE- “needs and necessities” estab. during marriage
-WHEN USED-
long term marriages, moderate term where approp. (CLEAR N CONVINCING), short term and exceptional circum.
-MODIFIABLE per FS 61.14 or showing of SUPPORTIVE RELATIONSHIP
-TERM-
*upon death of either
*remarriage or recipient
*recipient is in support. relat.
* or subst. change in circumstances

Family Law (5 decks)

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