Division of Marital Property

Question 1

How does PA divide marital property?

Answer 1

Through equitable distribution, dividing in a fair and equal manner. Court has broad discretion.

*Under PA Divorce Code, court may issue an injunction to prevent party from removing property from court’s jurisdiction, or otherwise alienating/ disposing/ encumbering in order to prevent division

Question 2

What is Marital Property?

Answer 2

(1) Property aquired during the marriage
(2) Increase in value of all non-marital property; decrease in value, offset by increase
(3) Seperate property that is comingled with marital property

Question 3

Exceptions to Marital Property

Answer 3

(1) Aquired before marriage or aquired in exchange for property aquired before marriage
(2) Excluded by the parties’ valid agreement
(3) Aquired by gift, except between spouses, bequest, devise, or descent
(4) Aquired after final separation, except property aquired in exchange for marital assets
(5) Sold, granted, conveyed or otherwise disposed of in goof faith and for value before state of final seperation
(6) Veterans’ benefits exempt from attachment, except those recieved when veteran has waived portion of retirement in order to recieve veterans’ compensation
(7) Property to the extent it is mortgage or otherwise encumbered in goof faith before final seperation
(8) Award or settlement payment recieved for any cause of action or claim that accrued before the marriage or after the date of final seperation (regardless of when payment recieved)
(9) In PA, furture inheritence

*Final seperation means they live seperate and apart

Question 4

When does a personal injury accrue?

Answer 4

at the time of the injury

Question 5

Factors in distribution of marital property

Answer 5

1. Length of marriage
2. Prior marriages
3. Age, health, earnings, earning potential, liabilities, needs of both spouses
4. Contributions to education
5. Opportunities for future acquisitions
6. Income, medical needs, retirement of both spouses
7. Contributions to increases or decreases in marital property
8. Value of seperate property
9. Reduction in valuation in marital property by one spouse
10. Standard of living
11. Economic circumstances
12. Whoe will be custodian of minor child

Question 6

Value the marital assets at the time of:

Answer 6

Distribution, not seperation

Question 7

Professional license/ education expenses

Answer 7

Professional license is not a distributable property interest; court may award spouse reimbursement for actual contribution towards other spouse’s educational expenses

Question 8

Retirement or pension benefits

Answer 8

Distributed, including military benefits

Question 9

Personal injury claim proceeds

Answer 9

If COA accrues during marriage, proceeds are marital property even if claim is paid after final speration

Question 10

Goodwill

Answer 10

Professional goodwill is not subject to equitible distribution

Question 11

Tax consequences of marriage property distribution

Answer 11

Property transferred bw divorcing spouses is tax-free at that time

Question 12

Alimony pendente lite

Answer 12

Awarded to put the dependent spouse in a position of equality while maintaining or defending the divorce action

Question 13

Factors in determining Post-divorce alimony

Answer 13

1. Financial resourse of spouse seeking support, and earning potential of parties
2. Standard of living
3. Time it will take for spouse to find employment or go through job training
4. Length of marriage
5. Age and health
6. Balancing spouses’ needs and ability to pay
7. Contribution to education or training of other party
8. Marital misconduct

Question 14

Types of Alimony

Answer 14

(1) Lump sum: fixed amount that may not be modified–does not end upon recipient’s death or remarriage
(2) Periodic: paid at a set time (monthly, quarterly)
(3) Rehabilitative: For a limited period of time–like until spouse recieved education or employment

*Alimony is taxible

Question 15

Modification/ Termination of Alimony

Answer 15

Generally may be modified if recieving spouse dies, remarries, cohabits with someone not family, change in circumstances

**Not the case with lump sum

Death and cohabitation terminate alimony–for all types

Question 16

Venue for divorce

Answer 16

For divorce and alimony and related claims venue is proper only in the county where the plaintiff or defendant resides OR county where parties agreed in writing (except for custody)

Question 17

Durational residency requirement for divorce action

Answer 17

At least one party must be resident of PA for at least 6 months before commencing divorce

**in spousal support matters the court never loses juris

Question 18

Divisible and Ex Parte Divorce

Answer 18

Can terminate marraige through ex parte divorce, without other party present and without PJ over them; but need PJ for deciding issues of alimony, child support, etc

Question 19

Indigent Parties Seeking Divorce

Answer 19

Court cannot require to pay costs and fees to access the court system

Question 20

When does a parent have a duty to pay Child Support

Answer 20

Obligated to provide support until child turns 18 or graduates high school, whichever is later

Court may extend if child cannot support theirself due to physical or mental condition

Termination of a parent’s parential rights due to a conviction for rape or SA resulting in child’s conception will not relieve the parent of liability for supporting minor child

Question 21

How does the court calculate child support?

Answer 21

Balances the child’s needs with the parent’s ability to pay

In PA support is based on net monthly income of the parties, from any source, adn the number of children

**If court deviates from guidelines, must set forth specific findings explaining–if parent is voluntarily unemployer or underemployed, teh court may impute an income

Question 22

Child’s Right to Support

Answer 22

Parents can’t bargain away the child-supoort payments; cannot agree to any realse or compormise that would negatively effect the child’s welfare

Question 23

Paternity

Answer 23

• Presumption that child born to married woman belongs to her husband–cannot be rebutted if family is intact at time of paternity question
• When not intact, presumption may be overcome by clear and convincing evidence that father was unable due to impotency, sterility, or lack of access
• In PA blood tests are only allowed once presumption has been overcome

Question 24

Paternity by Estoppel

Answer 24

Paternity regardless of whether are biologically related when it is in the child’s best interests and the man had taken on the role of fatherhood and established a bond

**Can be used to require support; cannot be used as a sword to prevent a biological father from asserting his rights

Question 25

Will a parent paying support be required to pay for private school?

Answer 25

Depends on wehther private schooling is a reasonable need of the child adn a reasonable expectation and expense of the parents Consider if the child will benefit and if private school is consistent with the family's standard of living prior to seperation \*\*PA does not mandate responsibility to pay secondary education expenses

Question 26

Additional factors considers in support actions

Answer 26

Considers: * children's ages * unusual need or obligation * support obligations of the parties * assets of the parties * medical expenses outside of insurance coverae * standard of living * duration of marriage--for spousal support or alimony * best interests of child

Question 27

Modification of Child Support

Answer 27

May be modified if there is a material and substantial change in circumstances Must immediately disclose change in financial status, especially if it is an increase and if do not there could be a retroactive modification

Question 28

Child Support Termination

Answer 28

When turns 18 When emancipated Child marries, parent dies, parental rights are terminated \*But there was one case in PA where post-mortum surppot was upheld where child support was party of the parties' settlement agreement

Question 29

Child Support Enforcement Mechanisms

Answer 29

(1) Civil contempt: when has ability to pay, can be sent to jail and held until amount paid (2) Criminal contempt: specific jail sentence if willingly fail to pay (3) Other sanctions: judgments, seizing property, garnishing wages, ordering to pay attorney's fees \*\*Registration of order: support order from another state can be registered with or without a simultaneous request for enforcement

Question 30

Tax Consequences of Child Support

Answer 30

Paying parent cannot deduct the payments and receiving parents cannot include as income Custodial parents gets dependency excemption, unless waived Parent that pays medical expenses deducts them

Question 31

Jurisdiction Over Child Support

Answer 31

* If multiple tribunals have juris then use the **home state test** * Home state must also have **long-arm juris** over the non-custodial parent--Uniform Interestate Family Support Act broaded where there is long-arm jury: * service in PA, appearance w/o objection to juris, respondant has lived with child in the state, has lived in state and paid support, child lives in state bc of R, R had sex in state maybe making child, other constl basis * if no long-arm then the initiating state sends 3 copies to receiving state, who serves non-custodial parent and has hearing Court with initial ruling has **exclusive continuing juris** *until*: 1. parties including child no longer live in state OR 2. parties consent in writing

Question 32

Types of Marital Agreements

Answer 32

**premarital:** usually contains terms related to division of property or spousal support in case of death or divorce **postnuptial**: after married, but before seperated; typically arises when there has been a falling out **seperation**: bw spouses planning for divorce; can define property division, spousal support, child support, custody, visitation; generally merge into final divorce judgment as long as are based on *fair and full disclosure* **property settlement**: settle economic issues before divorce decree issued

Question 33

Validity of Marital Agreements

Answer 33

Courts will enforce as long as there has been **full disclosure**, it is **fair and reasonable**, and it is **voluntary** \*Burden of showing invalidity by clear and convincing ev \*\*If marriage voided, premarital k only enforceable if will avoid inequitable result

Question 34

Validity of Marital Agreements: full disclosure

Answer 34

* Presumption if agreement expressly states full disclosure has been made; can be rebutted by clear and convincing ev * Lack of disclosure: disclosure must be inaccurate **and** unfair and induce other spouse to execute * Does not need to make reasonable provision for other spouse

Question 35

Validity of Marital Agreements: fair and reasonable

Answer 35

At the time of execution Trend is for courts to enforce agreements that may nor be fiar as long as there was fair disclosure It will not invalidate if: fail to address foreseeable concerns like financial gains and losses, career changes, other cirucmstance changes

Question 36

Validity of Marital Agreements: voluntary

Answer 36

Free from fraud, duress, misrepresentation * Insistence on agreement as condition to marriage is not duress Consider: time pressure, previous business experience, informed of right to counsel *and* given opportunity to consult counsel

Question 37

Modification of Marital Agreements

Answer 37

Court can alaways modify child support provisions May only make downward modifications to agreements executed before 1988