Spousal Support Flashcards
Maintenance in general
Capacity of spouse to be self-supporting is one factor considered,
not the key factor.
court may award temporary maintenance as justice requires absent contrary agreement.
Financial Disclosure
where support is an issue disclosures of both parties is compulsory.
Sworn statements of net worth must be provided 20 days after receipt of written demand
accompanied current paycheck stub and most recent state and federal tax returns.
Failure to comply may prohibit from providing evidence of own support at trial.
Requirements of the Court in Considering Maintenance factors
the court must consider 20 factors and
set out the factors considered and the
reason for its decision.
Factors the Court Considers in an Award of Maintenance (20)
First Cluster of 5
- Income and property of respective parties.
Includes property awarded in ED and income or property acquired after commencement. - Length of Marriage
- Age and Health of the parties
- Present and future earning capacity of both parties
- Need to incur education and or training expenses.
Factors the court considers in the award of maintenance (20)
2nd Cluster of 5
- Existence and duration of pre-marital joint household or pre-divorce separate household
- Acts inhibiting a party’s earning capacity (domestic violence)
- Ability of party seeking maintenance to be self-supporting and time and training necessary
- Reduced lifetime earning capacity resulting of foregoing education, training, or career opportunities during marriage.
- children in respective homes of parties.
Factors the Court Considers when deciding an award of maintenance (20)
3rd Cluster of 5
- Care of children, stepchildren, disabled adult children or stepchildren, elderly parents, in-laws that inhibit party’s earning capacity
- age or absence from the workforce inhibiting ability to gain employment
- need for exceptional expenses for children including schooling, daycare, medical treatment.
- Tax Consequences to each party
- Equitable distribution of marital property
Factors the court considers in the award of maintenance (20)
4th Cluster of 5
- Contributions as spouse, parent, wage earner and homemaker to the career of the other party.
- Wasteful dissipation of marital property
- Transfers or encumbrances in anticipation of matrimonial action without fair consideration
- loss of health insurance benefits
- Any other just and proper factor
Just and Proper considerations in Maintenance Awards
may consider marital fault in maintenance awards
a finding of misconduct by needy spouse does not preclude award.
Need and distribution of marital property and maintenance
No divorce without provisions for distribution of marital property.
No award of maintenance where there is no need.
Grounds for Modification
maintenance or child support award
SUBSTANTIAL change of circumstances.
Either party may move for a modification
changed circumstances may be grounds.
Remarriage and support of new spouses children is not changed circumstances.
Grounds include:
- change in custody of the children
- Reduction in income outside of the control of the payor
- loss of employment and payor has diligently sought other work
Grounds for Termination of Maintenance
- Remarriage of recipient - maintenance not child support
- recipient living habitually with another holding them out as spouse.
- death of payor absent contrary agreement
- death of payee
- remarriage, cohabitation of recipient, or death of either party does not terminate liability for amount in arrears.
Modification or Termination Effect on Arrears
- No modification may reduce any arrears reduced to final judgement.
- No arrears accrued prior to the application are subject to modification, absent showing of good cause for failure to apply for relief.
- Court will not reduce arrears unless facts constituting good cause are set forth in a written memorandum of decision
- Modification may increase award nunc pro tunc as of the date of application based on newly discovered evidence.
- retroactive payments may be adjusted for temporary or partial payments already made
Sequestration and Income execution
Court can require security for payments of any award or order sequestration of his property.
An agreement or stipulation incorporated by reference into a judgement is enforceable by an income execution or deduction order, is final and not modifiable.
When is a person in default of spousal or child support
failure to make 3 payments on the due date in amount directed or
amount in arrears equals one months payment.
execution for support may be issued by the support collection unit, sheriff, the clerk of the court, or attorney for the recipient (creditor)
Willful failure to obey a support or maintenance order
willful failure to obey a support or maintenance order
court will order respondent to pay petitioners attorney fees.
