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Flashcards in PROPERTY DIVISION/ SUPPORT Deck (30)
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1

2 MAIN PROPERTY QUESTIONS

1. what property is subject to division at divorce?

2. what share of property should each spouse receive?

2

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

3

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

4

UNIVERSAL COMMUNITY PROP

MINORITY

-all property owned by EITHER or BOTH subject

5

MARITAL PROPERTY

MAJORITY

-during, subject to division other than GIFTS, BEQUESTS, OR INHERITANCE

6

FRINGE BENEFITS

ex. army benefits

-not GIFTS, earned as COMPENSATION
-if earned DURING--> community
-if earned BEFORE--> separate, even IF paid out during

7

PASSIVE APPRECIATION

-appreciation not due to spouses efforts--> remains SEPARATE

8

ACTIVE APPRECIATION

-based on EFFORTS or INCOME of spouse

9

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

10

INSURANCE CLAIMS

-if separate property, insurance payout does not become community

11

INSURANCE CLAIMS (OPPOSITE VIEW)

-EXTREME MINORITY

-age, educ. background, contributions prior, etc

ex. old people, it might be necessary to apportion

12

PENSION-->

DEFINED BENEFIT

-employer agrees to pay empl.who satisfi. min. plan req.

1. formula = SALARY x YEARS
2. paid by employer
-UNVESTED-->
*dies or gets fired
*contingent interest

13

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

14

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

15

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

16

PRESENT VALUE

NON TITLE receives the value of his or her share of the pension at the time of the divorce

17

GASTINEAU RULE

if you voluntarily BREACH that would other be marital they count against the person who broke contract

18

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

19

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

20

ALIMONY

-duty of support continues even after marriage over
-only changed as MATTER OF LAW

21

PROPERTY V ALIMONY

ALIMONY-->
-income and taxable
-cant have longer than the length of marriage

PROPERTY-->
-not modifiable
-not terminable upon remarriage

22

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

23

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

24

ALIMONY STANDARDS

-TAXABLE as income to the recipient
-MODIFIABLE
-terminates upon marriage of R (generally)
-not discharged in BANKRUPTCY
-failure to pay

25

PROPERTY STANDARDS

-NOT taxable
-MODIFIABLE
-NOT TERM. upon remarriage
-only some DISCHARGED in bankruptcy

26

TYPES OF ALIMONY

BRIDGE THE GAP

REHABILITATIVE

DURATIONAL

PERMANENT

27

BRIDGE THE GAP

aid recipient spouse in making transition from MARRIED to SINGLE
-PURPOSE- transit., less than or equal 2 yrs
-REQ.- legit, idenfiable, short term needs
-NOT MOD. in AMOUNT or DURATION
-TERM. upon death fo EITHER or REMARRIAGE of recip.

28

REHABILITATIVE

-PURPOSE- gain skills/educ. for economic self sufficiency
-TERM or MODIFIABLE-
-subst. change of circums.
-non compliance with REHAB PLAN
-COMPLETION of plan

29

DURATIONAL

-PURPOSE- econ. assist. when need is less than perm.
-WHEN USED-
short term < 7
moderate < 17
long term > 17, where needs not perm
-NOT MODIFIABLE except EXCEPT. CIRCUM.
total duration cannot exceed # of yrs married
-TERM--> upon death of EITHER or remarriage of recip.

30

PERMANENT

-PURPOSE- "needs and necessities" estab. during marriage
-WHEN USED-
long term marriages, moderate term where approp. (CLEAR N CONVINCING), short term and exceptional circum.
-MODIFIABLE per FS 61.14 or showing of SUPPORTIVE RELATIONSHIP
-TERM-
*upon death of either
*remarriage or recipient
*recipient is in support. relat.
* or subst. change in circumstances