PROPERTY DIVISION/ SUPPORT Flashcards
(30 cards)
2 MAIN PROPERTY QUESTIONS
- what property is subject to division at divorce?
2. what share of property should each spouse receive?
FACTORS IF GIFT OR COMMUNITY PROPERTY
- source of money that bought gift
- intent of donor at time as to intended use of
- status of marriage relationship at time of transfer
- any valid agreement that transferred property was to be excluded
SEPARATE BECOMES MARITAL WHEN
COMMINGLE–> one spouse receives a gift of money and puts it in acct. where she normally puts earnings
TRANSMUTED–> money deposited in joint bank acct there is a presumption owner intended to make gift to the marital estates
UNIVERSAL COMMUNITY PROP
MINORITY
-all property owned by EITHER or BOTH subject
MARITAL PROPERTY
MAJORITY
-during, subject to division other than GIFTS, BEQUESTS, OR INHERITANCE
FRINGE BENEFITS
ex. army benefits
- not GIFTS, earned as COMPENSATION
- if earned DURING–> community
- if earned BEFORE–> separate, even IF paid out during
PASSIVE APPRECIATION
-appreciation not due to spouses efforts–> remains SEPARATE
ACTIVE APPRECIATION
-based on EFFORTS or INCOME of spouse
APPORTIONMENT CALCULATIONS
nmc= non marital contrib mc= marital contrib tc= sum of non marital and marital contrib e= equity in prop at time of distrib.
nmc/tc X e = NON MARITAL PROPERTY
mc/tc X e= MARITAL PROPERTY
INSURANCE CLAIMS
-if separate property, insurance payout does not become community
INSURANCE CLAIMS (OPPOSITE VIEW)
- EXTREME MINORITY
- age, educ. background, contributions prior, etc
ex. old people, it might be necessary to apportion
PENSION–>
DEFINED BENEFIT
-employer agrees to pay empl.who satisfi. min. plan req.
- formula = SALARY x YEARS
- paid by employer
- UNVESTED–>
- dies or gets fired
- contingent interest
- UNVESTED–>
PENSION–>
DEFINED CONTRIBUTION
-separate account maintained for each employee
FORMULA = % of salary + company profits
- what employee contrib.
- vest immediately
- can be funded solely by employ. or boss
TAGGART V TAGGART MAJ. IN FLORIDA
retirement benefits are subject to division as vested continent community property rights even though the present rights have not fully matured
VACATION TIME–> during marriage, if option to receive time in cash - DIVISIBLE
STOCK OPTIONS/BONUSES –> if they represent compensation of marital employment
RESERVED JURISDICTION/ DEFERRED PAYMENT
if post divorce the pension increases due to a promotion
SOME–> former spouse not entitled to any BUT may ask for adjust
OTHERS–> flat out reject this and do not permit this
OTHERS–> treat divorce as the day the party was retiring, therefore property ceases to accrue profit
PRESENT VALUE
NON TITLE receives the value of his or her share of the pension at the time of the divorce
GASTINEAU RULE
if you voluntarily BREACH that would other be marital they count against the person who broke contract
ECONOMIC FAULT
economic fault or dissipation should be considered AT DIVORCE- MOST STATES
-if know ending, and destroy, waste, or sell property in BAD FAITH, then held against the spouse
DISSIPATION DOCTRINE
forces spouse who dissipates property to bear full amount of loss
- intended to deter spouse from PURPOSEFUL destroying
- doesnt apply to PAYMENT OF LEGIT DEBT
- GAMBLING usually considered dissipation
ALIMONY
- duty of support continues even after marriage over
- only changed as MATTER OF LAW
PROPERTY V ALIMONY
ALIMONY–>
- income and taxable
- cant have longer than the length of marriage
PROPERTY–>
- not modifiable
- not terminable upon remarriage
REHAB. ALIMONY
enable REC. SPOUSE to estab. CAPACITY for self support commensurated with the STAND. OF LIVING estab. during course of marriage, through REDEV. of old skills or need to learn new skils
**HAS A SPECIFIC PLAN
PERM. MODIFICATION
husband has burden to prove:
- INVOL. and NOT PREV. CONTEMPLATED
- SUBST.
- MATERIAL n PERM. change in finan. circum.
- not contemplated in final judg. of dissolution
GOOD FAITH test when circum. TEMPORARY
- not only incur reductions in income BUT
- act in good faith to return income to previous level
IF VOLUNTARILY UNDER EMPLOYED, alimony will be imputed
ALIMONY STANDARDS
- TAXABLE as income to the recipient
- MODIFIABLE
- terminates upon marriage of R (generally)
- not discharged in BANKRUPTCY
- failure to pay
