Oklahoma Family Law

MARRIAGE

a) Types of Marriage (knowing which type lets us identify our options to terminate it). 18 is age of consent for marriage; Can have some court or guardian exceptions for 16, some exceptions under that.

i) Valid true marriage

ii) Void was never a marriage (read page 18 note)(1) Requires no formal action to terminate

(2) Can be attacked at any time

(3) Can be attacked by anyone to whom the issue is relevant

(4) No temporary alimony

(5) Annulment is a proclamation that no marriage ever existed

(6) Probably still want to get the judicial declaration because of property issues

(7) Statutorily set forth

(a) Three circumstances we can have a void marriage:

(i) Bigamy

(ii) Incest

(iii) Same Gender

iii) Voidable Starts out as what looks like a valid marriage, but in some conditions it can be voided. If the impediment has been removed, it can ripen into a valid marriage.

(1) Voidable Events:

(a) Fraud

(b) Both parties under age

(c) Incompetency

(d) Duress

(e) Coercion

(f) Marriage within 6 months of divorce

(2) Once impediment is removed, it can no longer be annulled

(3) Requires an affirmative step

(4) Cannot be attacked after death

(5) More limited as to who can attack basically only the parties or their guardians can attack

(6) Can have temporary alimony during the pendency of a ruling

(7) Annulment will be used when the marriage is voidable.

b) Divorce vs. Annulment

i) Divorce- recognizes a marriage existed

(1) Can cause the split of property

ii) Annulment- retroactive

(1) Popular for religious purposes

c) Restrictions on Who Can Marry

i) The Traditional Restrictions

(1) Bigamy

(a) Whitney v. Whitney (1)(i) W wants divorce from H, H claims he is already married to another woman for years no

(ii) A marriage void in its inception does not require the sentence, decree or judgment of any court to restore the parties to their original rights or to make marriage void. For sake of good order of society & peace of mind of all persons concerned, nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction.

(iii) Void because it is set forth in the statute.

(iv) No alimony or property rights arise out of it b/c there was no legal M

(v) Notes- plural marriages & bigamy- illegal in all states

(2) Incest

(a) Catalano v. Catalano (11)(i) Uncle and niece married in Italy and move to US, W (niece) tried to get property after H (uncle) died

(ii) generally a marriage valid where the ceremony is performed is valid everywhere, one X where its invalid is incestuous marriages b/t persons so closely related that their marriage is against strong policy of the domicile though valid where celebrated.

1. Incest is void under the statute.

(3) Age Voidable

(a) White v. McGee ()(i) If married past the age of minority, it ripens into a valid marriage.

(ii) If death comes before the impediment is removed, it is no longer attackable.

(4) Mental Capacity Voidable 128

(a) Houser v. Houser (18)(i) Consent involves a voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes:

1. A physical power to act;

2. A moral power of acting, and

3. A serious, determined, and free use of the powers.

(ii) Consent must be free, natural, and communicated by each other

(iii) Despite inconsistent case law, it is voidable. Impediment can be removed if they improved & decided to stay in the marriage that had been entered into when they were incompetent.

(5) 123- Getting Married w/i 6 months after divorce- voidable b/c unlike traditional bigamy, have a dissolution & it can be removed > 6 mo. period & ripen into a valid marriage.

(6) Same Sex

(a) 3.1 same sex marriage is not recognized. Federal defense of marriage act do not have to recognize marriage if it is against the public policy of state.

(b) ODarling v. ODarling (31)

(i) 2 women married in Toronto and moce to Tulsa and seek dissolution

d) Fraud & the Marriage Relationship

i) Seirafi-Pour v. Bagherinassab (41) green card fraud

(1) ruled fraud when Iranian girl married American man, never engaged in sex and would stay at her sisters

ii) Miller v. Miller (47) W misrepresented pregnancy. Child was not really Hs and court granted annulment based on egregious misrepresentation to He) Common Law Marriage

i) Estate of Phifer (54)

(1) Burden of proof - spouse claiming CLM; clear & convincing evidence

(2) Party asserting CLM must prove the CLM elements: (PEACH)(a) Permanent relationship

(b) Exclusive relationship

(c) *Actual & mutual agmt between spouses to be H&W (intent)

(i) intent is most important

(d) Cohabitation as man and wife (i) May not be needed if all others are well est

(e) *Hold themselves out publicly as H&W

(3) Not all 5 are reqd(4) Isolated instances are not sufficient to est a community-wide reputation that they were a married couple.

(5) Show evidence of both sides and explain which side carries the greater weight.ii) Standefer v. Standefer (55) H gets electrocuted and has 2 suits

(1) Ct relied on CLM element of actual agreement/intent

iii) Stinchcomb ()

(1) W claims they had CLM before the prenuptial agreement, in order to gain widows damages in death

(2) Ct considered that upon hospitalization, W immediately withdrew $30,000 and boat an expensive fur coat

iv) State of Smart v. Smart (61)

(1) Although California doesnt recognize CLM, they respect other states that do(2) Although H & W werent domiciled in OK, they were CLM in OK and would visit and stay for a few weeks @ a time

f) Marriage Presumptions

i) Parkhill Trucking Co. v. Row (64)(1) Ceremonial marriage is a rebuttable presumption (a) Strong presumption in favor of validity of ceremonial marriage(b) Person attacking the marriage carries the burden.

(2) No CL divorce bc the preceding CLM was still valid, the ceremonial marriage here was not valid.

ii) In the Matter of Estate of Allen (70)(Used theory of estoppel: if you do not speak when you ought to speak, you shall not speak when you want to speak.

(1) did not have legal divorce, prior CLW was estopped from claiming she was valid heir bc she had married and divorced another man in the interim, and had not claimed her marriage to be valid until his death although she had 13 yrs to do so bad characteriii) If spouse dies before divorce is final, marriage is still valid.

iv) Just bc people in CLM decide to go their separate ways & act inconsistently w/ married people, theyre still in a valid marriage & until they are divorced, any subsequent union is invalid bc its bigamous. g) No such thing as CL divorceh) OK recognizes the following presumptions:

i) Of ceremonial marriage upon proof of the ceremony ii) In favor of the subsequent marriages validity assumes the spouse divorces the previous spouse

iii) Of marriage from cohabitation (inference if not a presumption) DIVORCE

i) 43 101 provides 12 grounds for divorce in OK.

i) Abandonment for 1 year

ii) Adultery

iii) Impotency

iv) W @ time of her marriage, was pregnant by another manv) Extreme cruelty

vi) Fraudulent contract

vii) Incompatibility (most common) no fault ground ct refers

viii) Habitual drunkennessix) Gross neglect of duty

x) Imprisonment of the other party in state/fed penal institution under sentence for commission of a felony @ time petition is filed.

xi) Procurement of a final divorce decree w/o this state by H or W which does not in this state release the other party from the obligations of the marriage.

xii) Insanity

j) General Comments:

i) Incompatibility is no-fault ground (makes it easier) OK is no-fault state. (1) dont need any proof other than 1 party seeking divorce bc they dont want to be married, thus there is incompatibility. ii) OK doesnt look at fault in regard to division of property & alimony.

(1) Only if there is dissipation of assets inconsistent w/ marital use (using marital funds to pay for hotel room for affair).

iii) Need proof for any ground of divorce other than incompatibility, cannot just stipulate. Is more costly, more cumbersome and less judicially efficient.

iv) Can counter file for divorce. W could get divorce granted on basis of incompatibility and H could be granted on basis of adultery.

v) Can do a petition for separate maintenance. Same grounds & almost same relief. Some divorces are denied if woman is pregnant. Must have a person in being before you can issue any court orders, so cannot issue any orders for a baby not yet born.

(1) Thus, have to come back & do some things twice after baby is born.

(2) Some courts reluctant to grant. (3) Not denying divorce, just postpone until child is actually in existence.

(4) More common reason for denial of divorce = jurisdictional problems (e.g. filed in the wrong place)vi) 43 O.S. 108 Equally Wrong Parties Divorce Granted to Both Parties Powers of Court when Granting Alimony w/o Divorce or Refusing. That parties appear to be in equal wrong shall not be a basis for refusing to grant a divorce, but if a divorce is granted in such circumstances, it shall be granted to both parties. In any such case or where the ct grants alimony w/o a divorce or in any case where a divorce is refused, the ct may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and of the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties.

vii) Doctrine of Necessities (Smith v. Hernandez [68-70]) still exist

(1) Must tend to relieve distress or promote comfort of the body or mind

viii) Why seek divorce based on adultery when you can do it w/ incompatibility?(1) Aid in gaining more $, prop or custody; conscience or religious views; may be a condition on prenup; want to hit them w/ everything(2) Should at least try and deter client from using adultery, but if they insist, can continue representation or stop representing ix) Reasons to reject a divorce pregnancy k) Fault Divorce. i) Tigert v. Tigert (81) Wanted divorce on grounds of adultery rather than incompatibility. Ct agreed there was condonation of adultery bc dropped her previous divorce proceeding and reconciled w/ + resumed sexual relations during reconciliation.

ii) Condonement forgiveness, w/ an implied condition that the injury shall not be repeated, and that the party shall be treated w. conjugal kindness

(1) Is a defense to a ground (incompatibility, adultery, etc)

(2) Condonement is freely given pardon or forgiveness, carrying with it the implied conditions that the errant spouse:

(i) Not repeat the offense;

(ii) Treat the other with conjugal kindness

(iii) Maintain good conduct in the future

(3) Implied condonement occurs when: Assuming marital relations & treating each other w/ conjugal kindness after condoning spouse learns of offense & are no further offenses.

(4) Express: Condonation may be predicated upon an express condition, in which case the expressed condition must be fulfilled.

(5) Condonation is a defense to the assertion to any marital wrong as grounds for divorce.

(6) Exception to Revival of the condoned acts: where act relied on as constituting a breach of condition of condonation is due to fault or connivance of complaining party, the original offense is not revived.

(7) Revival can be accomplished by: (marital wrong can be revived)

(a) repeat of same offense

(b) breach of express condition

(c) commission of another offense

(d) with misconduct that would not in itself be sufficient to constitute a ground for divorce.

(e) A failure to treat the condoning spouse with conjugal kindness or to maintain good conduct would fall w/i one of the latter two categories.

(8) Policy defense of condonation- reconciliation will be encouraged and allowing errant spouse some protection under law when spouse honestly seeks & is granted forgiveness; an opportunity to reform furthers societys interest in continuation of marital relationshipsiii) Why argue adultery when it is harder?

(1) Religious

(2) Award of more property (but not in OK)

(3) Principal of matter.

(4) Vindictive

iv) Adultery is not in and of itself not used to determine custody.

l) No-Fault Divorce.

i) Vandervort v. Vandervort (102) (1) Divorce decree vacated due to fraud. H and W agreed to get divorce/transfer her assets to him to qualify for social disability/medicaid to pay her home care for her MS.

(2) held: The parties here colluded to misrepresent incompatibility as a ground for divorce (when they actually intended to continue cohabitating) and, in turn, used the sham divorce to deceive public agencies concerning Ws eligibility for public benefits.

(3) Also found fraud in that parties claimed to be residents of OK county when they werent and filed in OK county. Fact that Ws Entry of Appearance agreed for ct to hear & enter decree of divorce in her absence cannot cure fraud concerning residency. (4) Improper jurisdiction is ground for vacating divorce.

(5) State is a silent 3rd party in every divorce proceeding. (a) To protect States interest, a divorce decree is properly vacated where there is conduct that amounts to a fraudupon the state as represented by ct in the administration of justice.

(6) Incompatibility must be est by proof, objective in its character, of causes to which marital disharmony is attributed [and cannot be] bottomed on a mere subterfuge or after-thought [without] a substantial foundation.

(7) Dissent: Mutual fraud. They perpetrated it and benefited from it. Should live w/ consequences of their actions and not vacate divorce(8) Once divorce is vacated - marriage is valid.

(9) Advantage to remarrying instead of vacating - preserve division of marital property upon divorce(10) No time constraints on time that passes after to divorce to vacate if there is no intervening marriage to another person.

ii) Ellam v. Ellam (106) Separation Parties could not be granted a divorce on grounds of separation bc they were not living separate & apart bc NJ statute provides not only must be parties occupy different habitations but also must live separate & apart. Held themselves out as married and continued living lives together, even though they did live under separate roofs. Here, where he went home every day to do chores and visit his dog, it did not qualify.

(1) Different states have different time frames that you have to live separate.

(a) OK- wait 90 days to get divorce decree if you have kids, there are those to extend to 1 yr or live separate and apart for one year before grant divorce.

m) Separate Maintenance: Adjudication of the rights b/t dparties while they are separated. i) In a petition for SM, same as petition for divorce can use the same grounds.

ii) Can get same relief temp. alimony, child support, custody, property division, who is going to stay in the marital home.

iii) cannot get a divorce, permanent alimony, and a name change. (1) Why: religious beliefs, detrimental to employment, psychological benefit of not yet calling it quits, maintain health benefits w/ regard to worker issue and health issues, jurisdictional requirement is less.

iv) Dont have to have been living in the state for 6 months. v) When you file petition for SM, other person can counter file for divorce and divorce may be granted.

vi) Why do a separate maintenance agreement? (1) Need to keep joint benefits. Jurisdictional reqts differ dont have to be residence for 6 months. Religious reasons, may not want divorce. Other person can counter file for divorce.

vii) If there is a temporary automatic injunction, is there any reason for a temporary order?

(1) Yes, to deal w/ kid issues, alimony, immediate debts

n) Defenses to the grounds for divorce.

i) Condonation

ii) Recrimination (both parties are guilty of misconduct)

iii) Provocation (complaining party has provoked errant party)iv) Connivance- one spouse acquiesced in marital misconduct cant file for adultery if you solicited a 3 way

v) Collusion (agreed to commission of offense)o) In annulment can make same provisions for custody, child support and temp alimony, but not permanent alimony

p) Relief: same relief, but no divorce, no name change, no permanent alimony. This will be tested on!!!!!!

q) 4 ways to change name in OK:

i) Marriage,

ii) Divorce,

iii) Adoption,

iv) Through the name change act

r) Automatic Temporary Injunction protects status quo know some of main things on this.

s) 1st in time to file doesnt matter whose served first, county that is filed first has jurisdictiont) Multi-State Divorce

i) Sherrer v. Sherrer (140) W goes to FL for vacation and later decides to stay and shack up w/ another guy. Files for divorce in FL. W & H make agreement and they get divorce, and W married other guy. Later goes back to Mass to tend to ill relative. Ex-H then raised suit saying divorce in FL was not valid bc FL didnt have jurisdiction. H should have made special appearance to dispute jurisdiction @ that time, instead he submitted to the jurisdiction of the ct and cannot now dispute that jurisdiction bc Full Faith & Credit Clauseii) Policy: needs to be an end to litigation

u) Divorce Procedure.

i) 102 Residency 6 months

ii) 103- Venue Resident of county 30 days before filing-petitioner; no reqt for domicile of respondent to prevent forum shopping

(1) Separate maintenance can be brought at any time (also called alimony w/o divorce)

(2) (D) Inconvenient forum iii) 104 Personal Jurisdiction over someone who lived in marital state, even if no longer resident of state.

iv) 105 Petition Summons

(1) Title In re the Marriage of ________and _____________.

(2) The initial pleading in all proceeding under this title are denominated a petition

(3) Person filing petition = petitioner

(4) responsive pleading = response.

(5) person filing the responsive pleading = respondent. (6) Other pleadings = as provided in Rules of Civ Pro, except as otherwise provided in this section.

(7) petition must be verified as true, by the affidavit of the petitioner

(8) The summons may issue thereon, and shall be served, or publication made, as in other civil cases.

(9) Wherever it occurs in this title or in any other title of the OK Statutes or in any forms or ct docs prepared pursuant to the provision of the OK Statutes, the term divorce shall mean and be deemed to refer to a dissolution of marriage unless the context or subject matter otherwise reqs.

v) 106 Answer may allege Cause (1) New matters verified by Affidavit (now call Response.) If just admit and deny then dont have to attach verification, but always safer to file verification, just in case.

vi) 107.1 Time for Final Order Where Minor Children Involved Waiver Education Program

(1) Exceptions.

(a) When minor children involved, have to wait 90 days from the date of filing date of the petition before issue of final order. 90 days may be waived by the court for good cause shown and w/o objection by either party.

(b) The court may require that w/in the 90-day period the parties attend and complete and education program specified by 107.2.

(c) This section does not apply to divorces filed because of

(i) Abandonment for one year

(ii) Extreme cruelty

(iii) Habitual drunkenness

(iv) Imprisonment of the other party for felony at the time the petition is filed

(v) procurement of final divorce decree outside this state which does not in this state release other party form the obligations of marriage.

(vi) Insanity for 5 years, has to be institutionalized w/ poor prognosis of recovery.

(vii) conviction of child abuse of either party to the divorce

vii) ct may issue a final order in an action for divorce where minor children are involved before the 90 day period if parties voluntarily participate in marital or family counseling and the ct finds reconciliation unlikely.

viii) 107.2 4 hr class showing damage high conflict marriage can make on children.

ix) Waiver Divorce- when D is agreed upon, can file petition, the party that is not appearing in ct can sign a waiver of notice of court date. 24 hrs have to pass b/t time you file petition and file waiver. [Court Rules].

x) 127 Time when judgment is final in divorce appeal

xi) Can get jury trial in OK for contempt and giving up parental rights.

xii) 110- Orders Concerning Property, Children, Support and Expenses (very important, should probably know this one by number).

(1) Automatic Temporary Injunction Notice- to protect status quo goes beyond prop what can/cant do after divorce is filed. Except attorneys fees, necessary living expenses, business.

(2) If have to invade for purposes in (a) have to keep an accounting.

(3) Once served it is in effect and if you violate it, it is contempt.

(4) If there are kids you almost always need still need TO. Even if there is an agreement on assets or on custody.

(a) If you dont have one and the other party stops doing what they have agreed to do then you have no enforcement mechanism.

(5) Other reasons to get a TO residence, temp alimony, child support, support or visitation, prop, payment of debt, attorney fees, possession of prop, custody, debt distribution, reqts during visitation (no smoking, no overnight guests of opposite sex when children are there).

(6) Get TO by filing petition

(7) No reqt to answer application for TO, but generally recommended you do bc you might want different stuff.

(8) Cant appeal TO(9) Statute we look to for provisions for emergency TO - exparte emergency relief. Irreparable harm will result.

(10) Allows for attorneys fees

xiii) 110.1 Policy for Equal Access to Minor Children by Parents. OK county really good about enforcing statute. Some counties do not enforce.

(1) BoP on parent to show why there should not be joint access.

(2) Notice not joint custody. Custody means decision-making authority.

xiv) 1st in time to file is county w/ jurisdiction, doesnt matter which one served first.

xv) Chapman v. Chapman (153) consent decree, presumed you have all info.

(1) No time limit on prop settlement.

(2) There is a fiduciary relationship when not getting along = ceases when divorce is filed and parties hire counsel xvi) Whitmire v. Whitmire (158) Final order is not final if appealed on basis on granting of divorce. Divorce was not final bc W was appealing the granting of the divorce itself. You are divorced @ time you are proclaimed (1) EXCEPT if the appeal that is challenging validity of the divorce. H died before final decree and thus divorce was vacated.

xvii) Stuart v. Stuart (164) After divorce is final, W files tort claim for abuse. H claims she cant bc claim is foreclosed by res judicata.

(1) Tort claim does not have to be brought @ same time - divorce actions will become unduly complicated if tort claims must be litigated in the same action(2) Bargaining power of the parties person doing the abusing may not be as reasonable to settle prop matters if abuse claims are going to be litigated @ the same time;

(3) Divorce action is equitable in nature and involves a trial to the ct; trial of a tort claim is one @ law and may involve a request for a jury trial;

(4) Resolution of tort claims may necessarily involve numerous witnesses and other parties such as joint tortfeasors and insurance carriers whose interests are at stake;

(5) Dont want chilling effect of people working together in family ct;

(6) Dont want to make them waive rights they may be entitled to by forcing to be heard in divorce proceeding;

(7) Reqg joinder of tort claims in a divorce action could unduly lengthen the period of time before a spouse could obtain a divorce & result in such adverse consequences as delayed child custody & support determinations.

(a) if agreement is too comprehensive- may be precluded from bringing tort claim laterEQUITABLE DIVISION OF PROPERTY

2) Equitable does not mean equal. Fair always mean 50/50.

3) Ct can consider things such as length of marriage, what the prop is going to be used for, how the prop was acquired, etc.

4) Handful of states doing community property. 2 types: 1) community and 2) equitable distribution.

a) OK has dual property. b) Presumption - anything acquired during marriage is marital, then go backwards. i) If someone wants to claim it is not marital - they have BoP to show why it is not. If they can show 1 of the categories that shows it is separate, BoP falls to the other to show it is not.

5) Categories of Separate:

a) Owned prior to marriage - obviousb) Gifted during marriage tricky; hard to prove absent holiday or b-day c) Inherited during marriage provided it is not commingled (e.g. H gets $ from fathers will and places it in joint account)d) Acquired as a result of personal injury and suffering award as long as not commingled e) Property acquired during marriage by the use of separate property unless it changes character, due to transmutation f) Increased value of separate property if due to economic conditions (just goes up in value) unless marital endeavor, marital funds or adjustment g) Exceptions:

i) owned it prior to marriage and commingled w/ marital funds = marital property(1) Ex: Prior to marriage, H has car w/ 3 yrs of payments. During marriage makes 3 yrs of payments, funds earned during marriage = marital. Marital contribution to that debt. Any increase in equity would be marital prop

ii) Transmuted = commingling (change in behavior due to intent of parties)(1) Ex: H uses inherited funds to buy pool @ house. Prop has been transmuted from sep to marital pool is so commingled w/ house that it is transmuted. Can argue otherwise, but will be hard. Source of funds. It add value to the house? Maybe, especially if it was recent.

iii) Placing prop in joint title.

(1) Presumption - something is marital.

(a) If show that it transmuted, BoP shifts to other party to show it is marital.

h) Ct has discretion to order the sale of prop or an asset. Debt will look to income; prop going to try to go 50/50 or @ least fair.

i) Can use alimony in lieu of prop used if something cant be divided or will be diminished greatly if divided.

i) Prop divisions are not modifiablebut alimony is (ON FINAL)6) Hubbard v. Hubbard (175) Know as Hubbard Claim

i) Restitutionary alimony to pay W back and keep W from being unjustly harmed and H unjustly enriched due to Ws support of H. (This is alimony in lieu of prop but all alimony in lieu of prop is not necessarily restitutionary alimony.)

ii) Here, the ct awarded W $100K in lieu of prop division based on value of medical license that W helped H obtain.

iii) Reversed bc educational degree is not encompassed w/i the concept of prop and is therefore ineligible for valuation and division upon dissolution of marriage. (1) If cant sell it, cant pass it oncant divide it.

iv) Little or no marital prop had been acquired through the increased earning capacity provided by the supported spouses degree or training, the amount spent for direct support and school expenses during the period of education + reasonable interest and adjustments for inflation should be apportioned to the spouse who subsidized the education.

(1) bc of the total joint commitment to Hs education/training, were few conventional assets like expensive home, furnishings, savings/investments to divide @ time of the divorce.

v) Amount of investment (cost of school and education related expenses) and interest thereon.

vi) Was there a reasonable return on the investment?

(1) If they had been married 10 yrs after the degree was obtained, there would not be a case for restitutionary alimony.

(2) longer period of time after graduation, more opportunity for other spouse to benefit.

7) An item that has appreciated in value @ the time of divorce, if due to:

a) just economic factors - all the increase is also separate. b) 100% marital industry (time or funds) spent by either of the parties - increase is marital. c) Combination - have to figure out how much of increase is marital, how much is separate.

i) Divided equitably. 50/50 is typically starting point, but can be changed to make it equitable.

8) Forms of marital property distribution:

i) Even split straight up division = equitable ii) Set off

iii) Alimony in lieu of prop(1) 1 type is restitutionary alimony (Hubbard claim) when 1 party gets an intangible asset (degree) and the other one gets cash to prevent unjust enrichment. 9) How do we get the value of things:

a) Expert testimony, appraisal, etc.

b) Appliances FMV judged by what you could sell for @ time

c) Future income never consider for Hubbard claim bc is after the marriage10) Jackson v. Jackson (186)

a) W asserts Hubbard claim, but facts are different than in Hubbard bc here they were still married while he was practicing medicine. W had ample opportunity to enjoy the fruits of her investment

11) Forristall v. Forristall (188)

a) Hubbard claim; W had plan to finish education (as agreed by H & W)

b) Trial ct will decide how much to pay W for her education by factoring how much it will cost and what resources she has access to

c) Resitutionary alimony W contributed twice as much as H. ct can weigh how much each party put into it

12) Pounders v. Pounders (200)

a) H married W but still had child support to pay for past relationship. H used $ from W, wife wrote checks. W agreed to such situation by marrying him acquiesced.

b) Resitutionary alimony will not apply to this case

13) Professional Practices: Good Will

a) Travis v. Travis (206) Is good will of Hs law practice a marital asset?

i) Good will of a business - expectation of a continued public patronage.

(1) is transferable prop (2) Intangible asset pertaining to an est. business. (a) Intangibles have no intrinsic value, but do have a value related to ownership and possession of tangible assets.

ii) Goodwill - essentially reputation that will probably generate future business.

iii) Where goodwill is a marketable business asset distinct from personal reputation of a particular individual (usually the case w/ many commercial enterprises) it has an immediately discernible value as an asset of the business & may be identified as an amount reflected in a sale/transfer of a business.

iv) It is a divisible prop

(1) Can come to value by agreement or use FMV - need expert probably. (2) Factors experience, expertise, education, age, etc.

(3) OK law says law firms do not have goodwill.

(a) Attorney cant share files. Held that an earning capacity is more equitable than speculative division of good will in law practice of a sole practitioner. Diverse opinions outside of OK.

v) If the goodwill depends on the continued presence of a particular individual - not a marketable asset distinct from individual.

vi) Cannot sell his files to a succeeding lawyer bc it would violate ORPC, thus the earning capacity of a lawyer and subsequent setting of alimony based upon that earning capacity is more equitable than the speculative division of good will in the law practice of a sole practitioner.

b) Traczyk v. Traczyk (216) Generally, a medical doctors practice is more easily transferred to another doctor than a law practice to another lawyer. Typically, when transfer of a medical practice is to take place, selling doctor will introduce the purchasing doctor to the patients to prepare patients for a transition.

i) Held goodwill in Hs podiatry practice transferable to another podiatrist in event H sells practice, such goodwill may be included in value of the podiatry practice in making an equitable marital prop division

14) Pension and Profit Sharing Plans a) Use of experts in this area vital, cts consider it as a factor b) Pulliam v. Pulliam p. 206.

i) 2 ways to distribute assets:

(1) Present Value (a.k.a. immediate offset method) - pension is awarded to EE, and non-EE receives other spousal prop or $(a) Advantage - eliminates any future contact b/t the parties, the ct, or the ER.

(b) Disadvantage (i) reqs pension to have an ascertainable present value to offset equivalent spousal assets(ii) Another drawback occurs when there is insufficient spousal property - the EE is forced to pay a lump sum equal to the present value of pension. This may be difficult if EE lacks liquid assets necessary for a lump sum payment.

(2) Deferred distribution method - non-EE shares in retirement benefits when EE becomes eligible for them.

(a) Ct typically determines non-EE spouses % of future pension benefits which are attributable to the marriage.

(i) determination should be made @ same time other jointly acquired prop is divided.

(ii) advantage - present value of pension fund need not be determined. (iii) major disadvantage a final resolution is not reached @ the time of the divorce.(3) Why use present or deferred?(a) Debt is divided equitably ii) Pensions - generally are defined benefit plans rather than defined contribution plans.

(1) do not value pensions by what the contributions are.

(2) OK - present value method is preferable where pension valuation is not unduly speculative, and where, @ time of divorce, sufficient assets are available to divide present value of retirement benefits w/o causing an undue hardship to EE.

iii) Retirement plans fall into 2 broad categories:

(1) Defined benefit plans - most common type of pension plan. (a) ER is obligated to provide a certain monthly or annual benefit upon retirement

(i) paid from date of retirement until date of death. (ii) benefit to be paid upon retirement will be arrived at by use of a math formula.

1. Often the formula is: a % of relevant compensation multiplied by the # of yrs of credited employment.

2. Generally in defined benefit plan, a separate account does not exist for each participant. ER contributes periodically to 1 large fund from which all benefits are paid.

a. know what you are getting, but cant ascertain what you have along the way bc is in a pool of funds. May depend on age or level of employment attained

(2) Defined contribution plans req ER make a specified annual contribution to each EEs plan.

(a) separate account is maintained for each EE. (b) amount ultimately received by the EE will depend upon the amount of total contributions plus success of investment of the plan, forfeitures of other participant accounts and expenses of administering the plan. (c) Amount accumulated in fund can usually be determined @ least on an annual basis.

(d) Ex: 401K; thrift savings plans; personal savings plans.

15) separate prop - generally retains its separateness. a) Any increase - look to see if it is marital effort, economic or both

i) if both - look to see how much of the increase was attributable to marital industry is divisible. She doesnt get all that, just her portion of it.

16) Debt - divisible in same way as assets if it arose during marriage, it is divisible.

a) Equitable w/ assets: start w/ 50/50. b) Equitable to debt: looking @ ability of party to pay debt and look @ where assets are going.

i) Equitable distribution in view of income. ii) Especially if incurred and/or accrued during marriage, it is marital. (1) Doesnt matter whose name it is under (2) Ex: H had $2,000 debt before marriage, at end of marriage had $6,000; but had made payments throughout marriage = marital iii) Dont divide up on gender basis, or if it is education loans. iv) Separate debts and marital debts can overlap. v) Not uncommon for 1 party to take all debt. 17) When asked on exam how to divide?a) Equitably i) Deferred or present b) Get expert to do an evaluation i) Any future earnings = separatec) If decree is entered and some prop is left out, the prop goes to the title holderi) So want to always have a Catch-All Agreement d) Want a Hold-Harmless Clause e) When dividing pensions, will always want a Qualified Domestic Relation Order (QDRO) tells administrator how to divide pensionsf) Things considered when dividing prop:i) Extent of ownership ii) Economic faultiii) Need of kids 18) can a ct, when dealing w/ prop division, sever joint tenancy and req tenants in common?a) Ct cannot leave parties as joint owners of anything cannot req them to own something together19) Disability and Other Employee Benefits

a) Christmas v. Christmas (237) Disability benefits = separatei) Is replacing wages to be earned after divorce = separate

ii) Replacement analysis classifies benefits on the basis of the nature of assets they replaceb) Nelson v. Nelson (241) H wanted to transfer part of his retirement into disability to keep W from getting part. Ct reqd H to indemnify & ensure W got same amount she was awarded in divorce. This provision solely prevented H from unilaterally reducing Ws prop award.

i) Indemnification is allowable.

ii) When a pension is divided, its expected to be paid out the way it was decreed. (1) Dont need clause to say that can enforce order.

c) Davis v. Davis (247) Ct held severance package = not joint prop subject to equitable division

i) Ct followed replacement approach, which holds if proceeds in question replace wages earned during marriage - proceeds were marital prop subject to equitable division.

ii) Classify benefits not on what they are called, but by to the nature of assets they replace.

(1) To the extent it compensates for loss of post-divorce earnings by injured party - separate prop.

(a) bc a former spouse has no inherent right to salary earned by his/her former marriage partner after marriage is terminated

(b) no right to a disability award which is intended to replace future wages.

(2) To the extent that it recompenses for couples loss of income during marriage - marital propiii) Here, H gave up his right to sue for age discrimination, which would have been separate to him - thus, separate property.

d) What about vacation time not taken during marriage that can now be paid out. Is it marital?i) Yes it is marital bc accrued during marriage and has ascertainable value.e) Stock options Duty (250) - if stock options are not vested but received in marriage marital 20) Tort and Workers Compensation Recoveries

a) Crocker v. Crocker (253) Whether a lump sum workers compensation payment is considered to be joint prop for the purpose of marital prop division

b) Whether social security disability payments are joint prop acquired during coverture

i) Disability = not divisible bc represents a loss (injury) that has monetary value to that individual c) whether accrued equity in the couples home could be divided b/t parties after home had been awarded to H in the couples prior divorce.

i) Have to break it up and determine what it replaces using the Analytical approach. (only have to know analytical approach, but have to know that different states do it different ways.)(other states use: 1. mechanistic, 2. case-by-case and 3. unitary)ii) Analytical approach attempts to determine underlying nature of a workers compensation award before deciding whether it constitutes separate or marital prop.

(1) Separate prop of injured spouse includes economic losses occurring after termination of marriage, including amount of award, which constitutes loss of future wages & future medical expenses.

(2) To determine what portions of award are marital or separate property under the analytical approach, cts look at these issues:(a) Purpose of the award was it made for lost earnings, loss of future earning capacity, or some other purpose

(b) time period of any diminished earning potential or disability is relevant

(c) nature and date of underlying injury should be ascertained

(d) terms of award are important, i.e., when award vested, total amount of settlement and any other known specifics of the award itself.

iii) Social security disability divisible? NO

21) Transactional Problems

i) Gift & Inheritance

(1) Marriage of King (260)

(a) While married found out had 16 yr old out of wedlock

(b) Said he had donative intent

ii) Commingling

(1) Standefer v. Standefer (264)(a) Parties asked for joint settlement instead of separate claims so ct held it was jointly acquired propiii) Joint Tenancy

(1) Larman v. Larman (269) Harrington hates this case bc is murky & confusing. Remember: just bc it remained separate, any value increase due to efforts of a spouse, that part is divisible

(a) There is a rebuttable presumption of a gift where title to separately held real estate is placed by one owner-spouse in both spouses names as JT

(b) If a JT deed facially affects an unconditional transfer, is deemed a presumptive inter-spousal gift, whose effect can be overcome by clear and convincing evidence of a contrary intent.

(c) If they can show there was no donative intent, burden shifts back to other party to persuade (i) To show a gift:

1. competent donor

2. freedom of will on part of donor

3. donative intent to make gift

4. donee capable of accepting gift

5. delivery by donor and acceptance by donee

(ii) Here title was in both names due to financing restrictions, thus ct said was sufficient evidence to show no donative intent. Must have intent for a gift.

(iii) Additionally gifts must be gratuitous and irrevocable and go into immediate & absolute effect w/ donor relinquishing all control.

(iv) In short -gifts req an immediately effective, unqualified and gratuitous transfer of ownership to donee.

(2) Beale v. Beale (274) Issue: whether H gave a portion of assets to W when he added her name to certain bank accounts owned prior to marriage?(a) 3 elements to effect transfer of title by gift:

(i) Intent to give

(ii) Complete delivery of thing given

(iii) Acceptance by donee

(b) joint prop is marital property which can be rebutted by evidence that there was no inter vivos gift. (c) Rebuttable presumption of a gift where title to separately held real estate is placed by one owner-spouse in both spouses names as JT.

(d) Evidence included fact that only H had access/used to checkbook and W contributed nothing to funds in account; in some cases W didnt even know about accounts(3) if divorce decree and ATI is ordered, cannot remove the others name from the title iv) Income from and appreciation in value of separate prop(1) Marriage of Murphy (279)

(a) Conveyed land, TC found marital prop; W claims didnt mean for it to be a gift when she put in family trust

(b) Ct looked at reasons to create trust and how they were joint owners(2) Macdonald v. Macdonald (285) H got car dealership as gift from dad. Used partnership profits to buy additional prop and expand dealership.

(a) Funds used by H to acquire the rental real estate and the NH auto business, although undistributed were earnings taxable to the parties and over which they had discretionary control. Thus, the properties acquired w/ these earnings were part of marital estate.

(i) Profits of a partnership are income to partners, not partnership, and are taxed accordingly. Partnership profits are personal income to partners whether they are distributed or reserved.

(ii) Increase in value of non-marital prop is not intended to cover the income from prop acquired prior to the marriage. Such income is marital prop. Similarly, income from other non-marital prop acquired after the marriage is marital prop(b) Increase in value or appreciation of separate prop is marital or separate is governed by the Source of Funds rule in which the marital interest is determined by the ratio of marital and separate investments in the prop. Comports w/ the partnership or shared enterprise theory underlying the concept of equitable distribution.

(c) Source of Funds rule recognizes that improvements to sep prop may be traced to labor as well as marital funds, whether attributable to the efforts of one or both spouses.

(d) The increase in value of sep prop during marriage shall be apportioned b/t the sep prop of the owner & community prop of the spouses. Profit or increase in value of prop may result either from the capital investment itself, or from the labor, skill and industry of one or both spouses or from both the investment of sep prop & the labor and skill of the parties. Where both factors contribute to the increase in value of a business, that increase shall be apportioned b/t sep & community prop(e) Burden of est an increase in value of sep prop occurring during the marriage is on the party asserting that increase. Once an increase has been estd, under the statutory presumption in favor of marital prop, burden is on spouse who contends the increase is sep prop to prove the increase is the result of inherent value of the prop itself and is not the product of the work effort of the community.

(3) May v. May (289) Had a prenuptial agreement, all their sep prop was to retain its character and be managed separately. H buys home w/ his own funds. Later transfers interest in the home as a gift. Expenses incurred during the marriage for all but initial improvements were paid by both spouses in proportion to their respective interests. Court gave W interest.

(a) Prop was acquired w/ Hs sep funds. Its purchase, even though after marriage, did not ipso facto invest the W w/ any greater interest in that prop than she would have had in the money (before it was spent to buy house) if that money had remained intact in Hs sep pre-marriage bank account.

(b) 3 elements relevant in determining the quantum of Ws claim in addition to her 1/3 interest:

(i) Acquisition cost of the entire prop plus costs of improvements made (for which she paid her proportionate share);

(ii) Increased value due to inflationary factors or other market-place forces producing appreciation in price levels (unrelated to efforts of labor); and

(iii) Increase in value, if measureable, which is attributable to personal efforts of labor by spouses

(c) W entitled to her 1/3 share plus if there is any additional measurable increase in value of home that may be attributable not to appreciation in price but purely to efforts of labor expended through services (whether in doing minor repairs and improvements or in performing day-to-day maintenance duties), such increase alone is reachable as a joint spousal interest for division b/t parties on basis of an equitable share.

(4) Ford v. Ford (291) contribution of non-participating spouse(a) Whether a spouses practice of a profession such as law or medicine is to be characterized as jointly acquired marital prop and subject to division. Where one spouse brings separate prop to a marriage and an increased value of the prop (not overall value of company bc of goodwill) occurs as result of joint efforts of H&W, the other spouse is entitled to an increase in appreciation of the prop. (Good will is sep this is about actual physical assets. Some prob w/ accounts receivable, bc then are you going to consider the debts?) Stuff w/i law firm is divisible chairs, etc.

(b) A H is not obligated to support Ws children by a former marriage; but if he receives them into his family and supports them, it is presumed that he does so as a parent, and where such is the case, they are not liable to him for their support, nor vice versa(i) While it may have been improper for the TC to consider such medical bills paid prior to divorce in balancing the equities, record does not disclose that marital estate or that portion thereof awarded to W was diminished by TCs consideration of the payment of the medical bills. Error is harmless.

(c) Whether Ws litigation expenses and attorneys fee should be subtracted from the gross joint prop estate prior to division. Would run contrary to statute that provides: ct may req H or W to pay such reasonable expenses of the other in prosecution or defense of the action as may be just & proper considering the respective parties and the means and prop of each

(d) If acquired during marriage, dont need to show why it is marital. Party has BoP to show why it is not

(5) Thielenhaus v. Thielenhaus (294)(a) What portion, if any, of in-marriage increase in Hs retirement fund is divisible as marital prop?

(i) The in-marriage enhancement (or growth) in Hs retirement fund which is attributable to the ERs participatory payments or to either spouses monetary contribution, skill or effort is a divisible marital asset

(ii) but any increase in Hs sep. (pre-marital) interest in that fund, produced by investment (managed by neither spouse), appreciation, inflation, changing economic conditions or circumstances beyond the parties control is to be deemed the Hs sep prop1. 3 critical value-assessment elements identified to determine the non-owning spouses quantum of interest in the others sep prop are:

a. cost/value of sep propb. The non-divisible in-marriage enhancement caused by inflationary factors or other marketplace forces producing appreciation in price levels (unrelated to efforts of labor)c. Increase in value, if measurable by proof, which is due to personal efforts, skills or expended funds of the spouses labor.

2. A pension that has been purchased through joint efforts of spouses to the extent that it has been acquired or has become enhanced during the marriage is divisible marital prop. Pension rights that result from employment occurring before and after marriage partake of dual (separate and marital) prop character.

(b) What cut-off date shall be set for valuation of this marital asset?

(i) cut-off date to be set for valuation of the divisible marital interest in the fund is the date the nisi prius ct reached this suit for trial.

1. TC has to have discretion to est a cut-off date tailored to the cases circumstances

(c) Method of valuation is discretionary basically anything that is supportable.(i) Valuation can be different for different items/prop even w/i a single case

(d) Methods for which date to use:

(i) Separation

(ii) Dissolution

(iii) Filing

(iv) Any other that ct deems equitable (e) Overview: Growth on assets that is caused by economic conditions is also the prop of original spouse along w/ the sep asset. X is if the non-owning spouse can show marital industry in the economic growth (helped get the shopping center built next to their lot, the resultant shopping center increased the value of the prop substantially.) The sep asset still remains sep. If there is marital industry (labor and/or funds), the non-owning spouse gets his/her equitable share of that portion of the asset, both the principal and growth if something like a pension fund.

(6) Mothershed v. Mothershed (302)(a) Gift of 2,400 shares of common stock to each of his 2 children. Gift was issued in childs name only, and was not given jointly to each child and his/her spouse. Due to later redemptions, W came to own 100% of company.

(i) Dispositive issue is whether sep prop given to appellee by her father should be subjected to prop division bc of appellants managerial efforts, skills, and financial commitments which allegedly either enhanced the value of prop or changed the nature of the ownership.

(ii) Determination of the issue as to sep ownership of the prop acquired during marriage is dependent upon the original source of all prop

(iii) Received compensation for his position as pres.(b) Standard to overrule must be clearly against the weight of the evidence v) Valuation of Prop(1) Types of Prop (a) Brown v. Brown (311)(i) H appeals due to inappropriately assigned distorted values to 4 assets. In addition, money judgment payable to W was not deducted from Hs award.

(ii) Look at FMV for valuations of houses not what you paid for it(iii) Not valuing the assets contained w/i the house prop valuations do not include items in house; however, to be equitable, the contents of the house should also be divided;

(iv) Since the parties requested the division be as equal as possible & values were ascertainable, it overrode general principle of equitable distribution.

(b) Johnson v. Johnson (314) Division of prop in divorce is equitable cognizance and will not be overturned unless it is clearly against the weight of the evidence. Different ways to value things. As long as it is supportable, will not be overturned.

(c) Robbins v. Robbins (315) Value of assets at issue. Different ways to value. Not acceptable to have people come in that morning, look at the car lot, and make a guess. They did not consider salaries, or look at the books. Credibility is going to be a major factor when we have dueling experts. (i) Dont rely on people known in the community (e.g. Local car dealers)(d) Teel v. Teel (318) division of prop. Liability of debt was assigned to H, W got alimony in lieu of prop for the homestead, but if debt was found to be hers, she got stuck w/ all of it. Ct changed to say that if she got stuck w/ debt, H has to pay an equitable amount.

(e) Spencer v. Spencer (325) General criteria for achieving an equitable division of joint prop:

(i) Need affords no criterion;

(ii) extent of each partys rights in the prop depends on their respective conduct and efforts as the contributing factors in the creation and acquisition of the entire marital estate. vi) Look at FMV, not replacement value of household items when doing prop division what you could sell it for now in current condition. Receipts dont matter, nor does replacement value.

vii) Address co-mingling - sep prop before and why or why not you are going to treat it as sep upon division (8 yr marriage is going to wipe out previous debt that has since been co-mingled)

viii) Hubbard claim if the facts are there that make you think it, at least explain and mention - state why you do not think it is applicable. Education, living expenses and interest. If she paid part of the living expenses, she can get credit for that. W gets Hubbard claim of $30K, give her $30K. 401K of it was hers to begin w/ anyway. One party invested, the other party is unjustly enriched where there was no debt.

ix) Debt - doesnt matter whose name its in if accrued during marriage. Dont split things based on gender. If you do, explain that you know it looks like gender, but it really isnt. x) Student loans - incurred during the marriage are marital; but it may not be equitable to split that 50/50. Need to look at details of situation. For debts, look at income of the parties. For assets, we are going to try to make it 50/50; in debts, we are looking at circumstances, incomes, who gets the assets underlying the debts, etc. Debt does not have to be 50/50!!!

xi) Exam Pension recognize if part of it is sep and the interest thereon as it is valued. Dont necessarily have to give the amounts; issues of sep prop for both debt and assets; prop that appears to be sep, has it been transmuted or commingled; dont forget to allow parties to accrue interest on any sep portion (pension, 401K)ALIMONY AND CHILD SUPPORT

22) 2 Types

i) Alimony in lieu of prop not modifiable (bc form of prop) and nobody gets a tax deduction;

ii) Alimony as spousal support modifiable, income to the recipient, tax deductible to the payee.

(1) Neither is dischargeable in bankruptcy any longer.

23) 3 things as to whether alimony is warranted in a case when doing the analysis:

i) Is there a need by the person requesting?

ii) Is that need derived from the marriage? rationally connected to the marriage(1) Health

(2) Ability to support self

iii) Is there ability to pay by the payor? (1) Also important taxes and who will pay them 24) Title 43 134 Alimony Payments

i) Look at income of payor ii) Needs to be sum certainiii) Minus Taxes

iv) Minus Expensesv) Cannot be retroactivevi) Neither type of prop cannot be lien on prop*vii) Parties can agree to do something different than what statute says.

viii) If party dies then amounts not accrued terminate*ix) Alimony may continue after remarriage (motion for continuance w/i 90 days then ct can consider) have to show continued need and that it would be inequitable to not continue alimony. If all of payments have already been made you cant go in and ask it to be continued, have to ask before it ends*x) Cohabitation is grounds for discontinuing alimony, not automatic. [living together w/ member of opposite sex in conjugal relationship] substantial (1) What if cohabitation w/ same sex? Cant get in under cohabitation rule, but can argue changed financial circumstances substantial & continuing(2) Cohabitation - dwelling together continuously & habitually of a man and woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a CLMxi) Change in need or change in ability to pay can be reasons for modification marrying someone w/ bunch of kids doesnt qualify.

xii) Change in circumstances cannot be something that was foreseeable at time of the prop division. I.e. I was getting a lump sum in cash and you knew or should have known that I would have invested the cash to earn interest income.

25) General:

i) BoP for overturning alimony - weight of evidence or abuse of discretion.

ii) Decree must have the amount of alimony and if it is alimony in lieu of prop or spousal support.

iii) Neither type can be a lien on real prop unless there is a ct order;

iv) Parties can agree to do other than what the statute says, but need to be very clear about itv) Alimony must still be in existence; ct cannot change something that is no longer in existence. Must be a basis for modification.

26) Standards for the Alimony Award

i) Stansberry v. Stansberry (329) - W has a need; relatively young woman who is going to blind. H wants her to live barebones.

(1) Not derived from the marriage, but health issues are considered to be part of what happens in the marriage.

(2) Ct is going to take into account standard of living.

(a) To be overturned the support alimony granted by the TC has to be contra to the evidence and an abuse of discretion.

(b) She has condition of diminishing sight and will not be able to work and support herself the way she had lived.

(c) The determination of amount of alimony to be allowed in a divorce action reqs the consideration of the station in life and the conduct of parties, earning capacity and estate of the H and financial means & physical condition of the W.

ii) Bowman v. Bowman (331)(1) Rationally connected to the marriage alimony should not be awarded unless the underlying basis for the award has some rational connection to the marriage itself.

(a) Fact that H has more assets or earning capacity is not a basis for an alimony award.

(b) It is merely a predicatory circumstance which must be found to exist to support an award. (c) A Ws need has become the primary, if not the sole criterion as a basis for an alimony award.

(d) If the need arises out of or is aggravated by the marriage itself or some event connected to the marriage (i.e. illness, postponement of education, or any other cause rationally connected) then it qualifies as a basis on which alimony should be properly granted where the circumstances of the parties otherwise justify an award of alimony.

(e) Here the fact that her kids were sick existed before this marriage.

iii) Johnson v. Johnson (334) Alimony claim must be supported by proof of excess monetary needs to cushion the economic impact of transition & readjustment to gainful employment. Alimony is awarded based on demonstrated need.

(1) Here, evidence did not disclose the existence, nature or extent of the Ws need for alimony, so no alimony was granted.

(2) Alimony is awarded based on demonstrated need, but ct cannot order what it does not know about.

(3) Spouse may need rehabilitative alimony or amounts to allow spouse to get training so she can support herself

(4) Record did not show:

(a) cost of maintaining the W during her post matrimonial economic readjustment period

(b) amount of income from income-producing prop set aside to her

(c) anticipated length of time that will be reqd to make the necessary transition.

(5) BoP is on the person seeking alimony. Must be evidence of:

(a) amount of money W reasonably needs for readjustment of lifestyle to a new economic situation

(b) her income-producing capacity, such as the # of hours she works per week and her monthly income

(c) her monthly expenses and future living plans and expenses

(d) her physical condition

(e) cost of her desired education

(f) whether her station in life or standard of living has changed since separation

(g) how much her new cohabiting provider contributes to her monthly needs.(6) You dont have to dissipate your assets in order to get alimony iv) Wood v. Wood (336) - Need must be rationally connected to the marriage itself.

(1) Party requesting alimony, upon a showing of need, is entitled to receive alimony in a sum equal w/ the mode of living to which she has become accustomed as a W.

(2) Court must consider the parties station in life, their respective conduct, earning capacity, the marital estate and the wifes contribution thereto.

(3) Ws needs here were created by a lifestyle which the parties jointly estd and her standard of living will be substantially diminished by the alimony award as it stands.

(4) W got attorney fees bc H exacerbated the litigation and Hs conduct throughout the trial served to increase the resulting fees.v) Peyravy v. Peyravy (340) bc the cause was previously remanded for re-calculation of Hs income for purposes of child support, this was remanded for re-calculation of support alimony (1) Appropriate factors to base support alimony on:

(a) Parties station in life

(b) Length of marriage and ages of the parties

(c) Earning capacity of each spouse

(d) Parties physical condition & financial means

(e) Mode of living to which each spouse has become accustomed during the marriage

(f) Evidence of the spouses own income-producing capacity

(g) Time necessary to make the transition for self-support vi) May v. May (349) Sum certain - cannot give support alimony in an indefinite sum total.

27) Modification of Alimony

i) Mathis v. Mathis (351) - Decree of divorce provided for termination of Ws support upon her remarriage or death of either party. W remarried. w/i 90 days of her remarriage, W applied for a continuation of support alimony pursuant to 43 OS 134(b).

(1) In order to continue post-remarriage support alimony, recipient has BoP to show unusual or extraordinary circumstances.

(a) extraordinary circumstances is not shown simply by W showing she cannot continue same lifestyle in new marriage that she experienced as result of receiving support alimony(b) Public policy basis is favoring support by the current H.

(i) 43 OS 201 and 202 req spouses to support each other.

(ii) Ct believed that it is illogical and unreasonable that a spouse should receive support from a current spouse and former spouse at the same time.

(iii) remarriage should serve as an election b/t support provided by the alimony award and the legal obligation of support embodied in the new marital relationship.

(c) If this had been an agreed divorce, parties could have contracted to extend the alimony regardless whether W remarried or not. Can contract to things that the ct cannot order.

(2) What happens if she had gotten an annulment?

(a) In OK, heavy towards no reinstatement, light on maybe.

(b) Once you remarry, that action of getting married notifies the other person they are off the hook, can do something else w/ the money bc they no longer have an obligation.

(c) So person who created that reliance should suffer the penalty no reinstatement. (d) Some jurisdictions allow reinstatement of alimony.

(e) modern position does not take a strict all or nothing approach but adopts a flexible approach.

(f) recent view allows a ct to exercise its discretion to restore alimony if, considering all the circumstances, it is necessary to rectify serious inequity or injustice.

(3) 1289 - provides that alimony is terminated after remarriage but ct is permitted to allow a continuation upon a proper showing that said support is still needed and that circumstances have not rendered payment of the same inequitable. (4) Continuing substantial change in circumstance Policy- ex-W doesnt get to choose which man gets to support her. We dont have exes supporting currently married persons. Could have contracted for the support to continue after remarriage. (5) Standard for modifying alimony:

(a) w/ cohabitation substantial

(b) w/o cohabitation substantial and continuing ii) Smith v. Smith (357) - fact that she is living w/ someone, who is living and mooching off her, doesnt mean her needs have changed. She has the same reqts and is now spending her savings to support the deadbeat.

(1) TC erred in reducing the support alimony bc was no proof of reduced need on her part as the recipient spouse. No showing the alimony inured to the benefit of her cohabitant.

(2) If voluntary cohabitation is alleged in a motion to modify the payment of support, the ct shall have jurisdiction to reduce/terminate future payments upon proof of substantial change of circumstances of either party to divorce relating to need for/ability to support.(3) Cohabitation is not an automatic and absolute termination of alimony iii) In re Key (360) - Cannot change what did not exist.

(1) If you do not have alimony estd in the divorce, cannot have it modified later and TC cannot create an alimony award later.

(2) If no agreement, ct cannot give a nominal award of $1 or $10 w/ the idea to modify it later(3) She wanted an award of alimony bc he deprived her of her prop settlement by filing BK.

(a) alimony in lieu of prop is no longer dischargeable under bankruptcy provisions

iv) Thielenhaus v. Thielenhaus (364) H paid all the alimony payments already

(1) If no payments are do or outstanding the ct lacks statutory authority to modifyv) Shadid v. Shadid (367)(1) Public policy argument - want people to improve themselves and become self-sufficient.

(2) OK Law recognizes modifiability of spousal support obligations upon proof of:

(a) changed circumstances relating to the need for support or ability to support(b) which are substantial & continuing so as to render the terms of the decree unreasonable to either party.

(c) Unreasonable - change of circumstance must be not only substantial & continuing, but must also be a change not contemplated at the time of the parties agreement; in fact it must be the very essence of change. (i) Substantial & continuing + not contemplated at time of agreement (d) Where 1 spouse receives cash and the other prop in the division of marital estate, and the spouse w/ cash invested some, it must be contemplated that the investment will earn interest income.

(e) Where a spouse has been unemployed during the marriage, it may be contemplated by the parties, depending on the facts and circumstances of the case, that the previously unemployed spouse will obtain post-decretal employment.

vi) Smith v. Smith cannot use alimony as a punishment in Oklahoma. (not in book).

vii) Dickason v. Dickason if consent decree is silent, we are not going to assume the obligation will continue after remarriage and/or death. If the pre-suit spousal agreement as to the amount of support-alimony and it intends to go outside the provision of the statute, need to make it crystal clear. If not stated clearly, assumed that you meant to conform to statutory provisions.

viii) Whitehead v. Whitehead (391) Sum Certain is not reqd by statute but is still followed based upon precedent. Where in a suit for divorce the ct awards alimony to W, to be paid in money, it must be for a definite sum, to be paid in gross or in installments.

(1) How do you make them pay alimony:(a) Lien on prop(b) Income assignment

(c) Contempt of ct ix) BoP for modifying alimony:

(1) Substantial change in circumstance (ability to pay or need, or continuing cohabitation)(2) Rehabilitative alimony training, schooling, education to get them back on their feet.(a) Prove by showing clients budget(3) Support Alimony living expenses

(4) Deductibility purposes: (a) payments must be made in cash as opposed to a promissory note

(b) must be reqd by a ct order

(c) parties cannot be a member of same household at same time alimony is being paid

(d) cannot file joint tax returns at same time alimony is being paid

(e) cannot be child support under another name

(f) IRS can recapture if you disguise alimony in lieu of prop instead of spousal supportx) Parham v. Parham (400)

(1) termination and modification are not the same

(2) if parties wish to apply special conditions for modification or termination they must clearly express such intent STANDARDS FOR CHILD SUPPORT

28) Now have benefit of child support guidelines. Est what supporting parents will pay based upon income and need.

a) 118.2 Employers Duties Regarding Court or Administrative Order for Health Coverage give custodial parent the ability to get insurance payment info when they are not insurance policy owners. Also makes divorce a qualifying event.

b) QMCSO order that sets forth this info that you can send to insurance company.

c) 118.3 Agreement to Obtain Certain Necessary Info reqs parties to provide previous W-2 and 1099 forms upon request on an annual basis.

29) Factors:

a) Monthly income of both parents added togetherb) Go to chart, look at # kids there are, thats the support amount

c) To get relevant %, look at each parents %age of the income.

i) Parties pay %age based upon their %age of total income amount. ii) He will also pay that same pro rata share of insurance for kids etc. iii) Day care contribution while working, going to school or looking for job.

30) Department of Human Services ex rel. KAG v. TDG (424)a) Whether a release b/t a M and a putative F absolving F of support obligations bars the appellant, DHS, from bringing a paternity action and estg support obligations.

b) A release attempting to permanently deprive a child of support is void as against public policy. Does not prevent Human Services from bringing paternity action and estg support obligations pursuant to 10 OS 1991 89

i) child was not a party to the agreement

ii) minor has an independent right to institute a paternity action

iii) agreement was not approved by a tribunal

iv) right to proceed in an action for support belongs to child, and that it cannot be bargained away by a settlement b/t the F and M

v) Any attempt to permanently deprive a child of support is void as against public policy.31) H & W agreements dont have to be enforced by a ct if they are unjust, unreasonable, or inequitable to the child

32) 4 formulas/approaches to child support: (vary by state, dont need to know by name)

a) Melson Formula Parents should retain minimal amount for themselves b) Wisconsin Formula % of net income

c) Cassetty Formula equalize the standard of living b/t the two houses

d) Washington/Income Shares Approach should receive same amount as they would had dissolution not occurred 33) Hogue v. Hogue (432) TC erred in determining Fs income based on his last 3 pay stubs 34) 118 Child support guidelines cannot take into account step children; do not use combined incomes from new spousesa) Income 118.4.a. Ct shall include for each parent, whichever is most equitable, either:

i) All earned and passive monthly incomeii) All passive income, and earned income equivalent to a 40 hr work week plus such overtime and supplemental income as the ct deems equitableiii) average of the gross monthly income for time actually employed during previous 3 yearsiv) minimum wage paid for a 40 hour weekv) If equitable, the ct may instead impute as gross monthly income for either parent the amount a person w/ comparable education, training, and experience could reasonably expect to earn.

b) Shared parenting different calculation if you have over 120 overnights; reduces income. 118(10)(a)

c) BoP to modify: material change in circumstances

i) Change in income (increase or decrease)

ii) Change in living expenses

iii) One child ages out w/ multiple children covered by child support

d) Ends age of majority or continuously attending high school through age of 19.

e) amount of a child support order shall not be construed to be an amount per child unless specified by the district or admin. Ct in the order. f) child reaching majority is a material change and reason for modification, but cannot automatically end- have to serve to modify.35) State ex rel. DHS v. Baggett (437)a) F is in prison and Q is whether F has to pay DHS back for monies paid to M for support of child and what should be used as his gross monthly income for the purpose of figuring his child support obligation bc F had no assets, and lacked a present income or real earning capacity due to his incarceration in prison? b) TC attributed to him a gross monthly income for child support purposes based on the minimum wage for a 40 h`r work week.c) Hs incarceration cannot be equated w/ permanent physical or mental incapacity 118(b)(4)d) Parents have a legal duty to support and educate their children and to prevent them from becoming public charges

e) Maintenance of a minor child is an enforceable parental duty and it cannot be shifted as a burden upon the shoulders of othersf) Basic rule of equity jurisprudence - equity will refuse to lend its aid to one seeking its active interposition who has been guilty of any unlawful or inequitable conduct in the matter w/ relation to which he seeks reliefg) Has been recognized that when an able bodied parent is voluntarily unemployed or underemployed, and, thus, has no income or a reduced income, it is proper to attribute to that individual for child support purposes either an actual monthly income based on the minimum wage or an income based on what the person could earn;

i) Such recognition is nothing more than acknowledgement that equity will normally not favor reduction of a child support obligation where the parents financial condition is due to his/her fault, or voluntary wastage or dissipation of his/her talents and assets.

h) Equitable concepts cannot generally be applied to eliminate an incarcerated parents child support obligation or that incarceration due to conviction for criminal activity may be equated w/ voluntary unemployment or underemployment for child support purposes.

i) Criminal activity can foreseeably lead to incarceration and such activity is obviously w/i an individuals control.i) Becomes a judgment once its due. If it isnt paid it does not result in contempt, but still has to pay 36) Hees v. Hees (434) - TC erred in calculating the modification by excluding the value of Fs on-base military housing from Fs income. 43 OS 2001 118(E)(3)(e) specifies that free housing received by a parent in the course of employment, is an in-kind payment that shall be counted as income in computing child support.37) Nazworth v. Nazworth (443) - kid received money from Hs disability via Social Security

a) It is added to Hs income for calculation, and is credited for obligatory payments

38) Smith v. Smith (448)

a) More accurate method for calculating child support for income amounts beyond the guidelines chart - as the combined income increase, the % from the income decreases as to child payments

b) Three Pony Rule no child needs 3 ponies even if the parents can afford such

39) Kerby v. Kerby (453) - when the parents combined income exceeds the child support guideline table, a substantial increase in one parents income is a material change of circumstances allowing review of an existing child support w/o a showing of change in childrens needs.

a) A significant change in income is material even where there is no change in childrens needs

b) When the combined income exceeds the table, 3 factors are considered in the initial award:

i) childrens needs

ii) parents ability to pay iii) Prior standard of living.

c) 2 steps in the process of a child support award modification:

i) There must have been a material change in circumstancesii) Then, the moving party must show that, under the facts, modification of the existing award is warrantedd) OK doesnt have a defined amount of what is a significant change in income to reach change in circumstances discretion of ct40) Garcia v. Garcia (457)

a) F lost job, not his fault. Seeking to lower child support

b) Ct must look to particular circumstances involved & critical to determine whether the reduction in income was in GF or BF41) Hedges v. Hedges (462) - cannot use laches as a defense for not paying child support arrearages.

a) Before a claim will be considered barred by laches it must be shown that:i) has been an unreasonable delay in the commencement of proceedings to enforce the claim and

ii) by reason of this delay the has been materially prejudiced.

b) Here, that did not happen. knew he owed the money, so the only thing that happened was he owed more money.

c) Need to find out if there was an agreement, when it was made, and if there were any arrearages at that point, it would be waived by agreement.

d) Cannot contract against future child support, so all future child support from the date of the agreement would still be owed.

42) What do we use to determine income? a) Tax return w/ all schedules attached and year-end paystub may provide more info than a W-2. 43) If self-employed? a) Tax returns, business records, income statements and balance sheets of company, expenses & deductions.

44) Child support is judgment as matter of law when it is incurred.

a) Can be used as a lien against real prop automatically but will have to be revived after 5 yrs.

b) Alimony can only be a lien against real prop if you get a ct order to do so

45) Enforcement mechanism for arrearage

a) Contempt

b) Income assignments are req`d as a matter of law.

c) DHS collection ability to intercept tax returns.

d) Uniform Interstate Family Support Act

e) Passports can be denied and ineligible for food stamps (if over 5K)

f) State license can be revoked if child support is not paid; Professional licenses, drivers licenses, fishing licenses.

46) 43 OS 112 - child support must be paid through the age of 19 unless continuously attending high school at which time child support must be paid through the age of 20. There can be no ct ordered child support past the age of emancipation, unless the child is still in high school.

47) Multi-State Alimony and Child Support

a) UIFSA Uniform Interstate Family Support Act 601-100/319 adopted in all 50 statesi) Purpose:

(1) prevent forum shopping

(2) allows for continuing exclusive jurisdiction to original issuing state

(a) until everyone is out of the jurisdiction or if someone is still in jurisdiction but have written consent for another state

(3) avoids inconsistent orders

(4) guide in modification of orders

ii) Home state - where child has lived prior 6 months before filing of petition

iii) Exclusive continuing jurisdiction - if issuing state loses that, next state that enters an order now has exclusive continuing jurisdiction. iv) Look at original basis for jurisdiction probably where kids are, but make sure you have personal jurisdiction over F.

(1) If no personal jurisdiction over dad, has to go where dad is. v) Ex: New order in MT where F lives. Now F moves back to OK. OK cannot resume jurisdiction automatically.

vi) Always retain the ability to enforce the orders that originated in our state.

vii) Act applies to establishment or modification of child support orders and enforcement.

viii) 601-207, 206 read and understand. ix) Read pages 492-494 and know well for exam

b) Powers v. District Court of Tulsa (482) W moved back to OK bc H was abusive and didnt want W living w/ him.

i) Do not have to list all facts pertinent to jurisdiction

ii) Personal jurisdiction uses Minimum Contacts Test

iii) Domestic violence itself is not enough to get personal jurisdiction for non-residents; but, when the behavior directs where the mom and child will live = long-arm jurisdiction c) Knowlton v. Knowlton (495) - A tribunal of this state issuing a support order consistent w/ the law of this state has continuing & exclusive jurisdiction (Buzz words) over a child support order:i) As long as this state remains the residence of the obligor, the individual oblige, or the child for whose benefit the support order is issued; or

ii) Until all of the parties who are individuals have filed written consents w/ the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

iii) M & kids lived in CO & F was living in CA. OK lost jurisdiction when all parties moved out

d) Moore v. Moore (498)(not read but discussed) - child does not have standing to bring an action against parent to collect child support arrearage. Payment of arrearage can be assumed a payment to reimburse custodial parent for support of children, rather than a payment for benefit of children themselvese) Davis v. Davis (499)(not read but discussed) - Attempt to assert his adjudication of guilt on a contempt citation must not stand, as Appellant was not shown to have willfully disobeyed the cts order w/ regard to non-payment of support by clear & convincing proof. i) Inability to manage ones finances does not take a non-paying parent out of willfully disobeying the ct order for support.

ii) A party may be adjudged guilty of indirect contempt where it is shown the contemnor willfully disobeyed order lawfully issued or made by ct. iii) Willful - defined as something done w/ specific intent to fail to do something the law requires to be done. iv) In defense, it may be shown the contemnor was unable to comply w/ cts order and that an honest effort was made to comply, which showing will excuse non-compliance.

v) If non-compliance w/ cts order is through no fault of the contemnor, then non-compliance w/ cts order is excused.

vi) Here, Appellant admitted he knew that he was under ct order to pay his ex-spouse support.

vii) Further, it was shown that during the time he made no payments he had bought a new house, car and furniture. These acts evince a clear and willful disregard for the cts orders.

viii) Difference b/t criminal and civil contempt. Critical feature that determines whether the remedy is civil or criminal in nature:

(1) whether the contemnor can avoid the sentence imposed on him, or purge himself of it, by complying w/ terms of original order. NOT when or whether the contemnor is physically reqd to set foot in a jail.

(a) If criminal many DP protections of crim pro apply (b) would have to be proven guilty beyond a reasonable doubt. (c) BoP for showing an intentional violation of the cts order is on prosecutor.

ix) Person can purge contempt by:

(1) Making all future payments for child support, day care expenses and unreimbursed medical, dental, orthodontic, psychological, optometric, or any other physical or mental health expenses as reqd by current order for child support; and,

(2) paying the full amount of the arrearage, or some portion thereof, as a lump sum if ct determines the contemnor has the financial ability to do so, and

(3) if the full amount of the arrearage is not paid in a lump sum, then by making additional monthly payments in amount equal to of the current monthly child support obligations.

48) George v. State (503) Criminal contempt. Abandonment of minor children. Didnt pay child support and called kids 2x in 7 yrs.

a) Jury properly found the necessary elements and app ct is not going to overturn. Criminal action for willfully neglecting children. 3 yr sentence. Ct said actions show willful actions. Started reducing child support payments as ex-W got closer to nursing school grad & stopped paying altogether49) State ex rel Dept of Human Serv. V. Palmer (506) F got compensation from radiation exposure at work. Money was seized and applied to a single child support that was unpaid.

a) Ct is allowed to seize and apply Fs compensation

b) Assignment and transfer prohibitions are intended to protect U.S. govt not the parties; protect from multiple claimants seeking to enforce claims that had no real relationship

c) They had specific exceptions, so shows they didnt intend any more, so cant just extend 50) UIFSA Uniform Interstate Family Support Act.

a) Bases for jurisdiction over nonresident- 601-201i) In a proceeding to est, enforce or modify a support order, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or individuals guardian or conservator if:

(1) Personal service w/i the state

(2) Submits to jurisdiction by consent by entering a general appearance, or by filing a responsive document having effect of waiving any contest to personal jurisdiction(3) Individual resided w/ the child in the state

(4) Individual resided in this state and provided prenatal expenses or support for the child

(5) Child resides in this state as a result of the acts or directives of the individual(6) individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse(7) individual asserted parentage in the putative father registry maintained in this state by the appropriate agency; or

(8) is any other basis consistent w/ constitutions of this state and the U.S. for the exercise of personal jurisdiction.

b) 601-205

i) A. Continuing, exclusive jurisdiction tribunal of this state issuing a support order consistent w/ law of this state has continuing, exclusive jurisdiction over a child support order:

(1) As long as this state remains the residence of the obligor, the individual oblige, or the child for whose benefit the support order is issued; or

(2) Until all of the parties who are individuals have filed written consents w/ the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

ii) B. tribunal of this state issuing a child support order consistent w/ law of this state may not exercise its continuing jurisdiction to modify the order if the