AFP 7- Family Law

Question 1

What happens if the spouse is underemployed, self-employed, under-utilizing capital

AFP 7

Answer 1

Spouse is under-employed

• having a good job then quitting to show less income
• court decides the new income does not reflect the income that can be earned and disallows the request

Spouse is self-employed

• legitimate business expenses may not be legitimate deductions for spousal payments. Court can add these expenses and gross up the amount
• any income retained, the pretax amount can be added

Spouse is under-utilized
- large amount of cash and not investing it because it would increase support payments. Courts consider how much a conservative investment does and adds that amount for payments

Question 2

What are the 4 Primary Objectives of a Support Order

AFP 7

Answer 2

1. Recognition of Economic Advantages and Disadvantages
   - 1 spouse might be in a better position to earn income based on their roles in the marriage
2. Recognition of Financial Consequences arising from the care of children
3. Relief from Economic Hardship
   - the spouse who took care of the child might not be able to support themselves
4. Establishment of Economic Self-Sufficiency
   - ultimate goal is to bring the disadvantaged spouse to economic self-sufficiency
   - support payments are not to be indefinite

Question 3

What are the following Trusts

Testamentary Trust
Inter-vivos (Living Trust)
Resulting Trust
Constructive Trust

AFP 7

Answer 3

Testamentary Trust
- arises upon the death of the testator according to their last will and testament
Inter-vivos (Living Trust)
- set up and takes effect during the testator’s lifetime
-can be revocable or irrevocable, with irrevocable the settlor cannot change the terms or give assets back
Resulting Trust
-based on a presumption the person has a share in the assets
Constructive Trust
- one person benefits at the expense of another

Question 4

What is Condonation and what is Connivance

AFP 7

Answer 4

Condonation: overlooking past wrongs with the behaviour that demonstrates real forgiveness for the past wrong, those past wrongs cannot be later used as a ground for divorce

Connivance: involves one spouse scheming to lure the other into misconduct so that they will have grounds for divorce
–> ex: asking a friend to hire someone to flirt and have sexual relations with their spouse

Question 5

What are the following terms:

The petition for divorce
The Decree Nisi
The Decree Absolute

AFP 7

Answer 5

The petition for divorce
- commence any time after the breakdown of marriage 
The Decree Nisi
- when the court grants divorce
-the actual judgment 
The Decree Absolute
- 31 days the decree nisi the judgement is granted
- decree absolute finalized the divorce