Marriage and Divorce, Spousal and Child Support Flashcards
(41 cards)
Do most states recognize CL marriage?
No, few states (including Colorado) recognize CL marriage
What are the necessary elements to CL marriage?
- Capacity
- Present agreement
- Cohabitation
- Holding out a marital relationship to the community
True or false: A marriage valid in one state will not be recognized in another state, regardless of public policy
False. Marriages valid in one state will be valid in another state unless it violates strong public policy in another state.
Explain a putative marriage, why does it matter?
Putative marriage: an innocent party participated in a ceremonial marriage and believes in good faith the marriage is valid, but later discovers there was an impediment.
Allows the innocent party to seek legal remedies like spousal support and property distribution.
What is the typical standard for no fault divorce?
Irreconcilable differences. NO REQUIRED ATTEMPT AT RECONCILATION
What are grounds for fault-based divorce?
- Adultery
- Cruelty
- Desertion
Note that cruelty requires some sort of physical abuse
True or false: Some states require physical separation for a period before granting divorce
True
What is a mediator’s code of conduct?
- Be impartial and disclose COIs
- Explain the process
- Control the proceedings
- No coercion or improper influence
List the two ways in which a jurisdiction will divide property upon dissolution. What is the majority rule?
- Community property (minority): equal 50/50 division
- Equitable distribution (majority): equitable/fair division, looking at parties’ circumstances
Explain the difference between marital property and separate property
Marital Property: equitably divided between spouses
+ property or assets acquired during the marriage by any means other than gift, descent, or devise
Separate property: property of the owning spouse
+ assets acquired during the marriage by gift, descent, or devise
+ anything acquired before the marriage
Are wages earned by a spouse during a marriage separate or marital property?
Marital property
May a court overrule the spending decisions of a married couple during their marriage if one spouse objects?
No. Each spouse during a marriage has full management rights of his/her earnings and a court may not overrule spending decisions of a spouse if the other objects
Does marital property accrue when parties are separated and awaiting divorce?
Yes, in most states in continues to accrue until divorce decree is entered.
In what ways can separate property transform to marital p roperty?
- If marital funds/efforts increase marital property
- If marital funds/effort build equity
Usually with a home/property
Ex: A spouse purchases a house before marriage. During the marriage, the spouse uses their wages (marital property) to pay the mortgage on the house. At divorce, the other spouse is entitled to MP share of the value of the home.
Does title in one spouse’s name matter for the purposes of property division?
No. Taking title in one spouse’s name is not conclusive.
What are the specific types of marital property?
- Retirement/Pension
- Professional licenses/degrees
- PI claim proceeds
How do courts typically determine how to distribute retirement or pension benefits?
Courts look at the current value of the pension, not future.
Note: Timing matters, as it can be both marital and separate property. May start as separate, but then accrued during marriage. Understand the difference.
Ex: Spouse 1 worked for 5 years before marriage and had a pension that accrued during that time. After marriage, Spouse 2 continued to earn the pension for another 10 years. The court would divide the benefits accordingly:
15 years of accrual = 1/3 (5 years)separate, 2/3 (10 years) as marital
How do courts treat a professional degree distribution?
Majority: not distributable property, but may affect support payments or distribution of assets
Also, courts may reimburse a spouse for amounts that spouse contributed to the other spouse’s education
How do courts treat distribution of personal injury proceeds?
Approach 1: All proceeds are treated as marital property
Approach 2: Damages divided by type
+ Compensatory (pain/suffering/disability): separate property of injured spouse
+ Consortium: separate property of non-injured spouse
+ Lost wages/earning/medical: divided equally
True or false: Courts may modify a property division after the divorce decree is entered
FALSE. Property division is not modifiable after the fact because it’s based on the parties’ assets at the time of divorce.
Changes in circumstance do not affect the property division but may affect support.
What are some of the factors courts will use to determine spousal support (look for the facts)?
Financial resources of both parties
Standard of living during marriage
Length of marriage
Time it will take for receiving spouse to find employment or finish education
Age and health of both parties
Contributions to the marriage
Marital misconduct (only in some states)
What are the different types of spousal support?
- Permanent alimony – remainder of dependent spouse’s lifetime
+ typical after long marriages - Limited duration alimony – when marriage was short duration
- Rehabilitative support – compensates a spouse for financial sacrifices during the marriage resulting in a reduced standard of living in order to secure an enhanced standard of living in the future
Provide an example of reimbursement alimony
A spouse worked two minimum wage jobs and did not pursue a higher degree during marriage so that the other spouse could go to school and obtain an advanced degree or professional license. The working spouse may receive reimbursement alimony due to past contributions to the marriage.
What is the standard courts use to determine of spousal support modification is appropriate?
Party seeking modification has the burden: “significant and continuing change in circumstances”
