Separate Support and Maintenance/Alimony Flashcards
Alimony v. Separate Support and Maintenance
Alimony refers to support payments made by one former spouse to another. Separate support and maintenance refers to support payments made by one spouse to another before divorce.
Temporary support can be awarded to give spouse sufficient means for support during divorce action and to enable spouse to prosecute or defend divorce action.
Failure to obtain support in separate maintenance action may act as a bar to alimony in a divorce action.
Award or possession of the family home can be part of support, and either spouse can be required to pay for such use and possession.
Parties may agree to terms (including non-modifiability) of alimony.
Fault and Alimony
Fault : Fault by either party can be considered when setting alimony or separate maintenance amount. The fault must:
(1) affect the economic circumstances of the parties; or
(2) contribute to the break-up of the marriage; AND
(3) happen before the earlier of
a. formal signing of written property or marital settlement agreement; OR
b. entry of permanent order of separate maintenance and support or permanent order of property or marital settlement agreement.
Adultery by the supported spouse (before the trigger event) acts as a bar to alimony.
Alimony/Separate Maintenance Factors
(1) duration of the marriage together with the ages of the
parties at the time of the marriage and of the divorce
(2) physical condition of each spouse
(3) educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential
(4) employment history and earning potential of each spouse
(5) standard of living established during the marriage
(6) current and reasonably anticipated earnings of each spouse
(7) current and reasonably anticipated expenses and needs of each spouse
(8) marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action
(9) custody of children
(10) martial misconduct of either or both parties, whether or not used as a basis for a divorce
(11) tax consequences to each party
(12) existence and extent of any support obligation from a prior marriage
(13) such other factors as the court considers relevant
Periodic
Periodic : This is the preferred form of alimony and is usually based on three factors:
(1) duration of marriage
(2) overall financial situation of parties
(3) whether either spouse was more at fault
Periodic alimony terminates at
(1) remarriage of supported spouse
(2) death of supported spouse
(3) death of paying spouse
(4) continued cohabitation > 90 days
But these rules of termination can be terminated by agreement.
Periodic alimony orders are modifiable due to changed
circumstances.
Lump Sum
Lump sum : This is a total sum paid in one installment or over a period of time. The parties must show special circumstances to award (e.g. necessity or agreement of parties). Lump sum alimony terminates at the death of the supported spouse. The amount is non-modifiable because the amount is already owed.
Rehabilitation
Rehabilitation : This is a finite sum to be paid in one installment or periodically. The parties must show special circumstances for such an award, based on
(1) time necessary for the supported spouse to obtain training or skills,
(2) likelihood that training will be successfully completed, and
(3) likelihood of success in the job market
Rehabilitative alimony terminates at:
(1) remarriage of the supported spouse
(2) death of the supported spouse
(3) death of the paying spouse
(4) occurrence of any specified event
(5) continuous cohabitation > 90 days
Rehabilitation alimony is modifiable on a showing of unforeseen events which would make it difficult to fulfill the obligation.
Reimbursement
Reimbursement : Definite sum paid in one installment or periodically, awarded when the court finds it necessary/desirable to reimburse the supported spouse from future earnings of paying spouse for events that occurred during the marriage.
Reimbursement alimony terminates at:
(1) remarriage of supported spouse
(2) death of supported spouse
(3) death of paying spouse
(4) continued cohabitation > 90 days
Reimbursement alimony is nonmodifiable due to changed
circumstances because it is a fixed obligation.
Property Division
The court is authorized to make an equitable disribution of all property, real or personal, acquired by either spouse during the marriage from a source connected with the marriage.
Four-step process :
(1) Determine what property is marital
(2) Determine the worth of the marital property
(3) Determine the proportional share each spouse is entitled to
(4) Determine how property is to be divided
Finality of determination
The property settlement from the dissolution is generally final and not modifiable
Marital/Non-Marital Assets/Liabilities
Marital/non-marital assets/liabilities
The following constitutes marital property:
(1) all property acquired by the parties during the marriage and owned as of the date of filing or commencement, except that which is specifically titled and held as non-marital
(2) enhancements of, or appreciation in, value of nonmarital assets as a result of efforts of either spouse during the marriage or from contribution to or expenditure of marital funds or assets
(3) gifts between spouses during the marriage
(4) all vested/nonvested benefits/funds accrued during
marriage
(5) real property held as joint tenants with right of survivorship, regardless of time of acquisition is rebuttably presumed to be marital.
Non-Marital Property
Non-martial property
The following constitutes non-marital property:
(1) property acquired by inheritance, bequest, or gift from a
party other than the spouse
(2) property acquired by either party before the marriage and property acquired after the earliest of
a. a pendente lite order
b. written settlement agreement
c. permanent order (settlement or maintenance)
(3) Property acquired by either party in exchange for property described in items (1) and (2)
(4) Property excluded by written contract of the parties
(5) Any increase in value in non-marital property, except to the extent that the increase resulted directly or from
efforts of the other spouse during the marriage.
Date for Determining Marital Assets
Date for determining marital assets
Property is marital if it is acquired before the date a spouse files a divorce complaint or initiates other marital litigation, and value is set as of the date of filing.
Marital Dent
Marital debt is debt incurred for the joint benefit of the parties (in the eyes of the court) regardless of whether the parties are legally jointly liable for the debt or whether one party is legally individually liable.
There is a rebuttable presumption that a debt of either spouse incurred prior to marital litigation is a marital debt and must be factored in the totality of equitable apportionment.
The burden of proving a spouse’s debt as non-marital rests upon the party making the assertion.
When a debt is incurred after the commencement of litigation but before the final divorce decree, the family court may equitable apportion it as a marital debt when it is shown the debt was incurred for marital purposes.
Equitable Division v. Alimony
Equitable division vs. alimony
The court may provide for equitable division without regard to alimony. After a determination of equitable distribution, the court must consider whether judgment for alimony is to be made.
Transmutation
Transmutation
Property that is the separate property of a spouse may be transmuted into marital property when
(1) property becomes so commingled as to be untraceable
(2) property is utilized by parties in support of marriage
(3) property is titled jointly
(4) property is otherwise used in such a manner as to evidence an intent by the parties to make it marital property
THE INTENT OF THE ORIGINAL OWNER TO TREAT THE PROPERTY AS MARITAL PROPERTY GOVERNS.
Special Equity
In a dissolution proceeding, a special equity is judicial recognition that one spouse has a vested right in property titled in or owned by the other spouse or 2) one spouse has more than one-half interest in jointly owned property.
Special equity is usually acquired by a contribution of one spouse’s funds, property, labor, or other services above and beyond “normal” marital duties in the acquisition, improvement or maintenance of the subject property.
Transmutation v. special equity : transmutation gives the non-owning spouse interest in the whole property, whereas special equity is merely an interest in the increased value of the property.
