Financial Support of Spouse and Children

Question 1

Spousal Support

AKA Maintenance or Alimony

Answer 1

• Obligation of one party to provide the other with support in the form of income.
• Can be definite or indefinite
• CANNOT be discharged in bankruptcy

Question 2

Alimony Factors to Consider

Answer 2

• Financial resources
• Standard of living
• Time
• Length of Marriage
• Contributions to the marriage
• Age and health
• Marital misconduct (weight depends on jx)

Each state determines by statute

Question 3

Types of Support

Answer 3

• Lump sum
• Permanent
• Limited duration
• Rehabilitative
• Reimbursement
• Palimony

Question 4

Lump Sum

Alimony

Answer 4

Can’t be change unless fraud)

Question 5

Permanent Alimony

Answer 5

Primarily uses when one spouse stayed home for kids; in cases of 15 y marriage or more/longer duration

Question 6

Limited Duration

Alimony

Answer 6

Limited period of time, typically awarded when mariage was of short duration, but still an economic need

Question 7

Rehabilitative

Alimony

Answer 7

Support for a limited time, until spouse gets education or employment

For example, a spouse may be required to pay rehabilitative alimony for a period of four years while a dependent spouse attends college. The payments would automatically terminate at the end of the four-year period.

Question 8

Reimbursement

Alimony

Answer 8

• Compensate spouse for financial sacrifices made during marriage that resulted in a reduce standard of living to secure enhanced future standard of living
• Often when one spouse went to school while the other supported them
• Rarely used, some jx treat as a payment of property division

Question 9

Palimony

Alimony

Answer 9

Available in only a few states, palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship.

Question 10

Modification of Spousal Suppert

Answer 10

• May be modified (even if Permanent)
• Party seeking modifcation has the burden of establishing significant and continuing change in circumstance
• Party who willfully or voluntarily reduced income will not recieve reduction in support payments

Question 11

Death

Modification of Spousal Support

Answer 11

Spousal support can continue until death

Question 12

Remarriage

Modifcation of Spousal Support

Answer 12

Most jurisdications, if receiving spouse remarries, spousal support is terminated (generally not revivable)

Marriage of obligor can consitute a change in circumstances that justifies reduction in spousal support

Question 13

Cohabitation

Modifcation of Spousal Support

Answer 13

Spousal support may be modified if need for support decreases as a result. But, typically not automatically terminated

Question 14

Retirement

Modifcation of Spousal Support

Answer 14

Jurisdictions differ:
Some say should have been addressed in divorce proceedings, others say the supported spouse should not expect same benefits after obligor has retired

Question 15

Spousal Support During Marriage

Answer 15

• Common-law : H obligated to support wife (necessaries doctrine ie suitible to station + necessary medical care)
• Modern Day : BOTH spouses are obliged
• Some jx : abolished for Equal Protection, creditors can sue both spouses for payment of necessaries

Often referred to as Family Expenses statutes

Question 16

Jurisdiction Requirements

Matrimonial courts

Answer 16

Need PJ and SMJ

Question 17

State Residency Requirements

Marriage and Divorce

Answer 17

Most states have statutory residency requirements, typically ranging from six weeks to two years, for a court to have subject-matter jurisdiction

Question 18

Full Faith and Credit Clause

Divorce

Answer 18

Applies to divorce decrees as long as one of the spouses was a resident of the state that granted the decree.

Question 19

Divisible Divorce Doctrine

Answer 19

A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse.

AKA Ex Parte Divorce

The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff either was not domiciled in the divorcing state at the time that the judgment was granted or left the state’s domicile immediately after the entry of the divorce.

Question 20

Indigent parties

Divorce

Answer 20

It is unconsitutional to require an indigent party to pay costs and fees to access the system

No legal right to counsel in divorce proceedings, but court has discretion to award fees and costs if unable to afford services of legal counsel

Question 21

Child’s Right to Support

Answer 21

In all jurisdictions, both parents (custodial and noncustodial), regardless of marital status, are legally required to support their minor children

Some jx go through college, can be continued indefinely for child incapable of self support (mental/physical disability)

Question 22

Child Support Definition

Answer 22

Child support is the payment by one parent to the other for the support of a common child.

Question 23

Child Support - Obligations of Parents

Answer 23

• Parents may not bargain away CS payments
• Can privately agree to the extent it does not affect welfare of the child
• Obligations of child support are adjusted as the physical possession of a child changes

Question 24

Nonmarital Children

Child Support

Answer 24

• Historically not entitled to CS
• Now, intermediate scrutiny applies to such laws
• Now receive child support, benefits, and wrongful death claims if paternity is proven
• Paternity can be established through court orders, acknowledgment (birth cert) or public proclamation by father

Question 25

Paternity

Answer 25

* Once established, father has rights to custody and visitation * Duty to support

Question 26

Establishing paternity

Answer 26

1. Blood test (if indegent, at state $) 2. Other evidence (prior statements, medical testimony, D's scknowledgement, resemblence of child) 3. Marital Presumption 4. Estoppel

Question 27

Uniform Interstate Family Support Act (UIFSA) Jx | Pj

Answer 27

Governs when a state has personal jx over an out-of-state parent * personal service * consent * past residency with child in the state * engaged in sexual intercourse in the state, and child may have been concieved by that act Always discuss UIFSA when multiple states are involved. Every state recognizes it and if a modifcation does not comply with it, then it is not subject to enforcement under the Full Faith and Credit Support Orders Act.

Question 28

How is amount of Child Support determined?

Answer 28

* Best interests of child * Age of child * Special needs * Assets of both parents * Standard of living during the marriage | Courts look at these, but may also use an income shares model ## Footnote Cost of medical insurance is typically included in the award

Question 29

Income Shares Model

Answer 29

Child should received the **same proportion of parental income as if the parties continued to live together**

Question 30

When is Modification of Child Support permissible?

Answer 30

When there has been a **substantial change in** circumstance regarding the **child's needs** or the **parents' financial situation** The parting seeking modification has burden to show substantial change

Question 31

Voluntary Reductions in Income for Child Support Modifications

Answer 31

If in **good faith**, the court may reduce the amount. | Generally no though

Question 32

Child Support Modification; Timing

Answer 32

There is no retroactive reduction, only from the date of the motion forward

Question 33

Termination of Child Support

Answer 33

* Typically ends when the child **turns 18** * If something jurisdictions support may go beyond the age of maturity if the child's in college (Is this subject to reasonable parental demands)

Question 34

Child Support Modification: Jurisdiction

Answer 34

* Covered by the UIFSA * The state that issued the initial support order has continuing exclusive jurisdiction to modify it Exceptions: * The parents and child no longer live there or * The parties expressly agree to permit another state jx

Question 35

Child Emancipation

Answer 35

* The child must be established as a self-supporting individual * Must be outside the sphere of influence of parents or indpenetent of their control * Employment itself does not do this | Emancipation is fact specific. So analyze all the facts.

Question 36

Enforcement of Child Support

Answer 36

* If a parent moves, they can register the order with the state, and it will recived full faith and credit (ie new state may enforce the order * Child and spousal support can be enforced through: 1. Civil contempt orders 2. Income withholding 3. Withholding tax refunds