EQUITABLE DISTRIBUTION Flashcards

(14 cards)

1
Q

Division of Property

A

The three approaches to division of property upon divorce are:
(1) community property;
(2) equitable division of ALL property owned by either spouse, whether acquired before or after the marriage; and
(3) equitable division of MARITAL property (each spouse takes his separate property and the court divides the property acquired during the marriage (most common).

Property distribution decrees are NOT MODIFIABLE.

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2
Q

Factors considered in division of property?

A

(1) Age, education, background, and earning capacities of both parties,
(2) The duration of the marriage, and whether there were any prior marriages;
(3) Standard of living during the marriage;
(4) Present incomes of both parties and their vocational skills and employability;
(5) Source of the money used to purchase the property (source of funds rule)
(6) Health of parties;
(7) Assets, debts, and liabilities;
(8) Needs of the parties;
(9) The child custody provisions
(10) Whether the distribution is in addition to or in lieu of spousal support
(11) Ability to acquire future income and assets;
(12) Each party’s contribution as homemaker to the family
(13) Whether either party has dissipated marital property

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3
Q

Separate property

A

Each spouse can take the separate property that she owned prior to marriage as well as any separate property acquired during the marriage by gift, bequest or descent.

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4
Q

Marital property

A

All other property acquired during the marriage is subject to equitable distribution.

Pensions, professional license or degree, damage awards in tort suits, stock options, mixed property, tax consequences of property division.

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5
Q

Mixed property

A

Separate property may become marital property if:
(i) the separate property is inextricably mingled with marital property or with the separate property of the other spouse to the extent that it can no longer be traced, OR
(ii) the separate property is treated in a way that evidences an intention for the property to be marital property.

When separate property is improved by the use of marital funds OR the effort of a spouse, courts generally hold that the property remains separate, but most jurisdictions grant the martial estate or the non-owning spouse reimbursement for the value added to the separate property.

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6
Q

Spousal Support

A

May be awarded while parties are still married, during the pendency of a divorce, and/or as part of divorce decree.

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7
Q

Spousal Support Amount

A

Court has discretion in awarding as much spousal support as necessary for the maintenance of the requesting spouse. Factors considered are:
(i) duration of marriage,
(ii) standard of living,
(iii) age and physical/emotional condition of parties,
(iv) financial resources of the parties;
(v) the contribution of each party to the marriage;
(vi) time needed for the party seeking support to obtain the training necessary to find appropriate employment;
(vii) ability to pay and meet their needs as well.

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8
Q

Types of Spousal Support

A

Permanent periodic; rehabilitative. Both are modifiable. Can award lump sum; OR reimbursement support.

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9
Q

Permanent periodic spousal support

A

Paid regularly (monthly) to support a spouse who has neither the resources nor the ability to be self-sustaining. Modifiable for changed circumstances. (will be set out in periodic payments, no grand total)

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10
Q

Rehabilitative Spousal support

A

Consists of periodic payments for a limited time to enable a spouse to gain skills to become self-supporting. (will be set out in periodic payments, no grand total)

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11
Q

Lump Sum

A

Non-modifiable, fixed amount payable either all at once or broken down into a series of payments. Survives death of either spouse. (ex “as a total amount”)

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12
Q

Reimbursement Spousal Support

A

(minority)
Award to a spouse who supported the other spouse while the latter obtained a professional license or degree. Such support is awarded as a fixed sum, which is neither modifiable nor terminable, and is based on the amount of the supporting spouse’s contribution, not the value of professional license or degree.

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13
Q

Modification of periodic spousal support

A

Periodic support may be modified if there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor. Legal obligations to a new spouse or children may be sufficient.

THE CHANGE MUST BE UNANTICIPATED. A self-induced reduction in income by the payor spouse is not sufficient to have a reduction. Can’t modify past due payments.

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14
Q

Termination of Spousal Support

A

Terminated upon death or remarriage, or even cohabitation in some states. Lump sum survives.

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