Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

family law > equitable distribution > Flashcards

equitable distribution Flashcards

1
Q

What presumption should an appellate court have regarding equitable division awards?

A

An appellate court should approach an equitable division award with a presumption that the family court acted within its broad discretion.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the family court’s discretion regarding the division of marital property?

A

The division of marital property is within a family court’s discretion and will not be disturbed on appeal absent an abuse of that discretion.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What does an appellate court consider when reviewing the apportionment of marital property?

A

An appellate court looks to the overall fairness of the apportionment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Is it relevant if the appellate court would have arrived at a different apportionment?

A

If the end result is equitable, the fact that the appellate court would have arrived at a different apportionment is irrelevant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is marital property?

A

Marital property includes all real and personal property acquired during a marriage and owned as of the date of filing or commencement of marital litigation.

S.C. Code Ann. § 20-3-630(A) (Supp. 2009)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is the doctrine of equitable distribution?

A

The doctrine of equitable distribution recognizes marriage as an economic partnership and aims to divide property acquired during the marriage fairly.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

How should property be divided upon dissolution of marriage?

A

Property should be divided in a manner that fairly reflects each spouse’s contribution to its acquisition, regardless of legal title.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what are the equitable distribution factors that the court MUST give weight to. 15

A
  1. Duration of marriage and age at time of marriage and time of divorce;
  2. Martial misconduct or fault either or both parties, if impacted $ or contributed to breakdown of relationship
  3. value of the martial property and contribution each spouse put towards appreciation/depreciation; includes contribution as homemaker
  4. income/earning potential/opportunity for future acquisition of capital assets for each spouse
  5. health (physical/mental) of each spouse
  6. spouse need for additional training or edu to reach spouse income potential
  7. non-marital property of each spouse
  8. existence/nonexistence of vested retirement benefits

9.whether separate maintiance or alimony has been awarded

  1. desirability of awarding the fam home as part of distribution or right to live there for reasonable time to the spouse that got the kids
  2. tax consequences
  3. existence/extent of prior support obligations
  4. leins/other encumbrances on the marital property/any other debts
  5. chikd support obligations

16 any other facotrs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What burden does the spouse claiming an equitable interest in property have upon dissolution of marriage?

A

The burden of proving the property is part of the marital estate.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What must the opposing spouse do if he wishes to claim the property is not part of the marital estate?

A

He has the burden of presenting evidence to establish its nonmarital character.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What must a spouse claiming nonmarital property has been trasnmuted to marital property must show

A

The spouse must produce objective evidence showing the parties regarded the property as common property of the marriage during the marriage.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are examples of evidence of transmutation?

A

Examples include jointly titling the property, using the property exclusively for marital purposes, commingling the property with marital property, or using marital funds to build equity in the property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Is the mere use of separate property sufficient to establish transmutation?

A

No, the mere use of separate property to support the marriage is not sufficient without additional evidence of intent to treat it as property of the marriage.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What determines whether separate property has been transmuted into marital property?

A

It is a matter of intent to be gleaned from the facts of each case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

what must a court do in making an equitable distribution determination (4 things)

A

(1) identify the marital
property, both real and personal

(2) determine the fair market value of the property so identified (valued as of the date of martial litigation filed)

(3) identify the proportionate contributions, both direct and indirect, of each party to aquiring the martial property, and

(4) provide for an equitable division of the marital estate,

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

even if property begins as nonmartial, when can non marital property be considered transmuted into marital property during the marriage (3)

A

(1) if it becomes so commingled with marital property as to be
untraceable;
(2) if it is titled jointly; or
(3) if it is utilized by the parties in support of the marriage or in some other manner so as to evidence an intent by the parties to make it marital property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is nonmarital property?

A

Property acquired by either party before the marriage is nonmarital property.

S.C. Code Ann. § 20-7-473(2).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

how is transmutation fact dependent

A

it is a matter of intent to be gleaned from the facts of each case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What happens to marital property in the form of earnings?

A

It becomes marital property in the form of appreciation in the value of the nonmarital estate.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What interest does a spouse have in improvements to nonmarital property?

A

A spouse has an equitable interest in improvements to property to which she has contributed, even if the property is nonmarital.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is ‘marital debt’?

A

‘Marital debt’ is debt incurred for the joint benefit of the parties, regardless of legal liability.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Do the same rules apply to marital debts as to marital property?

A

Yes, the same rules of fairness and equity apply to both marital property and marital debts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Who bears the burden of proof for nonmarital debt?

A

The burden of proving a spouse’s debt as nonmarital rests upon the party making the assertion.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is the presumption regarding debts incurred before marital litigation?

A

There is a rebuttable presumption that a debt incurred by either spouse prior to marital litigation is a marital debt.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
How must marital debts be treated in equitable apportionment?
Marital debts must be factored into the totality of equitable apportionment.
26
what kind of property does family court divide
marital
27
when do you look at whether something is marital property
at the time of the litigation/filing
28
do you need groudns for divorce to have the court divide the marital property
no; its also in proceedings of separate support and maintenance and over any other marital litigation
29
when is any fault of a spouse a particulary important factor for equitable distribution
whne the fault impacted econominc cirumstances if the faull happend after the earliest of 1. entry of pende lite order 2. formal signing of written property or marital agreement or 3. entry of permanent order of separate maintance and support or of a permanent order approving a property or marital settlement agreement between the parties
30
when is the courts order as to equitable distribution modifiable?
its not unless there is an appeal or remand following proper appeal
31
for facotr 3 of equitable distribution (contribution of each spose to the marital property) when is the contribution valued
at the date of filiig
32
is contribution limited to money
no
33
what is considered to be nonmartial property (at the time of filing) -- 5
1. property acquired by inheritance, device, gift from someone other than the spouse 2. property aquired before the marriage and property acquired after the happening of the earliest of entry of pendente lite order; formal sighing of written property or marital settlement agreement or entry of permanet order or martial settlement 3. property acquired in exchange for property described in 1 or 2 4.property excluded by written contract of the parties. 5.any increase in value in nonmarital property, except to the extent that the increase resulted directly or indirectly from efforts of the other spouse during marriage.
34
are interspousal gifts (including gifts of property from one spouse to the other made indirecly by way of a third party) marital property?
yes
35
why do courts have to figure out if property is marital or non martial first
because they dont have jurisdiction over non martial property
36
when the family court is determining the value of contributions before making an equitable apportionment, what are the three things a court must do /can do
(1) shall make findings of fact from credible evidence of the values of property and services, if any; (2) is empowered to take judicial notice of official reports of the federal and state governments, (3) has the authority to appoint experts as necessary for the purpose of valuation of property and contributions and to assess the cost against any or all parties to the action.
37
because valuation of property is to be determinted at the time of filing, what happnes if couple files, gets back together, and files again
the valuation should be based on the second filing; but if a value is significantly different , courts will look to see if the value change makes sense or if ti was bad faith
38
what does it mean when a court sequesters property
take legal possession of (assets) until a debt has been paid or other claims have been met.
39
when can the court order the sequesteration of a party's real and personal property in the state (2)
1. where it appears that personal jurisdiction may not be obtained over an absent party 2. where a party refuses to comply with an order of the court
40
how is the sequestered property and the income from it applied in equitable distribution
may be applied in whole or in part, at the direction of the court and as justice may require, so as to achieve an equitable apportionment of property
41
what happens if the property that is sequestered is insufficient to pay what is required
the court can direct the mortgaging of or the public or private sale of a sufficient amount of the sequestered property to pay what is required.
42
how can the court carry out its order of equitable distribution 2
1. The court may direct a party to execute and deliver any deed, bill of sale, note, mortgage, or other document necessary to carry out its order of equitable apportionment. 2. any other reasonable means
43
what happens if a party fails to comply with an equitable distribution order
the court may direct the clerk of court in the county in which the property involved is situate to execute and deliver the document, and this performance by the clerk is as effective as the performance of the party would have been.
44
what is a notice of pendency action
a docutment that informs the public of a pending lawsuit over real property has the same effect as a notice in civil actions
45
who can file a notice of pendancy
either spouse
46
47
When are a spouse’s property rights under this article effective against third parties for real property?
Only after a Notice of Pendency of Action is filed with the clerk of court in the county where the property is located.
48
When are a spouse’s property rights under this article effective against third parties for personal property?
Only after the third party receives written notice from either spouse that marital litigation has been filed.
49
Are third parties' prior rights in real property affected by a later-filed notice of pendency?
No, prior rights in real property are not affected by the filing.
50
Are third parties' prior rights in personal property affected by written notice of marital litigation?
No, prior rights in personal property are not affected by receiving notice.
51
What can a party apply for upon entry of judgment requiring payment or transfer of property?
A party may apply to the court for issuance of a transcript of judgment.
52
What jurisdiction do family courts have over contracts?
The family courts of this State have subject matter jurisdiction over all contracts relating to property involved in a proceeding under this article.
53
What additional authority do family courts have regarding contracts?
Family courts also have jurisdiction over the construction and enforcement of those contracts.
54
what do we need for an accurate finding of valuation of property
specfic valuations; if the parties cant agree the court can hire an appraiser but they cant pick a number out of thin air
55
what does the court need to loook at in terms of appreciation or depreciation
A court reviewing a property distribution must look at the appreciation or depreciation of marital assets with regard to the entire martial estate and not the assets individually.
56
can the cash value of life insurance polices be include
yes
57
can contributions, direct or indirect of the spouses to the aquisction of the property (step three of equtiable distribution) include manual labor
yes
58
does equitbable distribution have to be 50/50
no it just needs to be equitable doesnt need to be equal
59
when can severance be considered martial propety
you need to look at all the facts; is its purpose to replace income (so no marital property and cant be divided) or more like retirement that the job calls severence (martial property and can be retired because severece contemplates payments for servies performed during the course of the marriage)
60
What are the two factors for property to be considered marital property?
Property must be (1) acquired during the marriage and (2) owned as of the date of filing or commencement of marital litigation.
61
62
What happens if a trial court finds a spouse's debt was not made for marital purposes?
The debt need not be factored in the trial court's equitable apportionment of the marital estate.
63
Can the trial court require payment for a debt not made for marital purposes?
Yes, the trial court may require payment by the spouse that created the debt for non-marital purposes.
64
What presumption should an appellate court have regarding an equitable division award?
An appellate court should approach an equitable division award with a presumption that the family court acted within its broad discretion.
65
What does the appellate court consider when reviewing the apportionment?
The appellate court looks to the overall fairness of the apportionment.
66
Is it relevant if the appellate court would have arrived at a different apportionment than the trial court?
If the end result is equitable, the fact that the appellate court would have arrived at a different apportionment is irrelevant.
67
What happens when a debt is incurred after the commencement of litigation but before the final divorce decree?
The family court may equitably apportion it as a marital debt.
68
Under what condition can a debt incurred during litigation be considered a marital debt?
When it is shown that the debt was incurred for the joint benefit of the parties during the marriage.
69
what is professional goodwill
It attaches to the person of the professional man or woman as a result of confidence in his or her skill and ability. It would be extinguished in the event of the professional's death, retirement or disablement
70
is professional goodwill a part of the marital estate subject to equitable distribution
no
71
What can one spouse's contributions to another spouse's business create?
A special equity in his or her favor.
72
Is it an error to consider the assets of a spouse's business in the division of marital property?
No, it is not an error if there is evidence of material contribution.
73
What type of contribution can a spouse make to a business to be considered in marital property division?
Material contributions through personal services (ie like signing off on a loan)
74
What is goodwill?
Goodwill is the advantage or benefit acquired by an establishment beyond the mere value of its capital, stock, funds, or property.
75
What contributes to the value of goodwill?
Goodwill is influenced by public patronage and encouragement from habitual customers due to factors like local position, celebrity, reputation for skill, affluence, punctuality, or other circumstances.
76
What are some factors that can enhance goodwill?
Factors include local position, common celebrity, reputation for skill or affluence, punctuality, and even ancient partialities or prejudices.
77
What may the family court require for equitable apportionment?
The family court may require the sale of marital property and a division of the proceeds. ## Footnote S.C. Code Ann. § 20-7-476 (Supp. 1987)
78
What is the first approach the court should attempt for asset distribution?
The court should first attempt an 'in-kind' distribution of the assets.
79
What can a family court grant a spouse as part of equitable distribution?
A family court may grant a spouse title to the marital home as part of the equitable distribution if an in-kind distribution not available
80
When may alimony be granted after a divorce?
Alimony may be granted if the right to have it determined is reserved in the divorce decree.
81
What happens if the divorce decree does not provide for alimony?
If there is no reservation of jurisdiction in the decree, the decree is final and absolute, and the wife cannot be allowed alimony in any subsequent proceeding.
82
Is reservation of alimony a common practice in divorce decrees?
Reservation of alimony should not be routinely included in the decree of divorce, as it unnecessarily prolongs marital litigation.
83
What is the purpose of reserving alimony in a divorce decree?
It is a mechanism available to family court judges in proper cases, but it should not be used to avoid deciding whether alimony should be awarded.
84
When may alimony be reserved?
Alimony may be reserved when there is an identifiable set of circumstances likely to generate a need for alimony in the reasonably near future.
85
What conditions indicate that alimony should not be reserved?
Alimony should not be reserved when there is no need for it at the time of trial, and no indication of physical or mental illness, foreseeable change in need, or other extenuating circumstances.
86
What occurs when a partner benefits from the other's professional support without giving anything in return?
An unfairness has occurred that calls for a remedy.
87
How may a spouse's contribution to the other's education be addressed in divorce?
By giving the supporting spouse a large distributive share of the marital property.
88
What is the limitation of distributing marital property in cases of little or no accumulation?
The remedy of property distribution may not be sufficient.
89
What may be appropriate when little or no marital property has been accumulated during the marriage?
Reimbursement alimony may be appropriate, regardless of the appropriateness of permanent alimony.
90
What should a court consider regarding non-professional spouses' efforts?
A court should consider 'all relevant factors' including contributions of the supporting spouse, foregone opportunities for professional or vocational skills, and the duration of the marriage after the non-supporting spouse's education.
91
what is personal good will
assoicated with indivuduals; results from the reputation, knowledge and skills of individual people
92
What is considered non-marketable in family court?
Future earning capacity based on a spouse's reputation, knowledge, and skills - personal goodwill.
93
Is personal goodwill subject to property division in family court?
No, personal goodwill is not property subject to division.
94
what factors determine if something is enterprise goodwill?
if the business involves the manufactor of sales or goods; transactions are nonrecurrent; busimess comes from ads
95
what kind of goodwill is subject to equitable distribution
enterprise goodwill
96
what factors help est personal goodwill
business invles skilled/personal services; customers are repeat customers; new busimess comes from customer referals
97
What is military retirement pay?
Military retirement pay is essentially compensation for past services.
98
What are vested military retirement benefits?
Vested military retirement benefits constitute an earned property right.
99
What happens to military retirement benefits accrued during marriage?
Military retirement benefits accrued during marriage are subject to equitable distribution.
100
while the court normally must look at tax consequences in equitable distribution, when is it an abuse of discretion to do so?
if the apportionment order does not contemplate the liquidation or sale of an asset, then it is an abuse of discretion for the court to consider the tax consequences from a speculative sale or liquidation.
101
What does Section 20-7-472(13) create regarding debts incurred before marital litigation?
It creates a rebuttable presumption that such debts are marital debts and must be included in equitable apportionment.
102
Who bears the burden of proof for a debt claimed to be nonmarital?
The burden of proving a debt is nonmarital rests upon the party who makes such an assertion.
103
What happens to a debt incurred after litigation begins but before the final divorce decree?
A family court may equitably apportion it as a marital debt if it was incurred for marital purposes.
104
What is required to prove a debt incurred after marital litigation begins?
The burden of proving the debt is marital rests upon the party who makes such an assertion.
105
What does 'for marital purposes' mean in the context of debt?
It means the debt was incurred for the joint benefit of both parties during the marriage.
106
when can trust distributions be martial property
depending on how and when the interest was acquired or if the interest has undergone transmutation. they can be in certain limited circumstances
107
when is a trust to one spouse transmutted to martial proprty
if the trust was created with the intent to provide for Husband and Wife for the remainder of their lives.
108
What are the income taxes incurred by the parties during a marriage classified as?
Marital debt.
109
Is the tax on a husband's income considered marital debt?
Yes, the tax on a husband's income is a marital debt.
110
What does the South Carolina Code say about gifts from someone other than a spouse?
Such gifts are classified as nonmarital property.
111
What does S.C. Code Ann. § 20-3-630(A)(1) state about property acquired by inheritance, devise, bequest, or gift?
It states that property acquired by either party from someone other than the spouse is nonmarital.
112
Who bears the burden of proof to establish an asset as marital in nature?
The burden is on the party seeking to establish the asset is marital in nature.

family law (19 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions