Property Division
Community approach
What's mine is yours and what's yours is mine, equal division
Child Support Models
Percentage of Income Model (used in ND)
- looks at percentage on non-custodial parent of their income to determine what they pay
Income Shares Model
- looks at both parent's income to determine obligation. Support from each parent is based on the obligation
Parenting Plan
A written plan describing each parent's rights and responsibilities
Legal Requirement
Offer and acceptance, supported by consideration, parties have capacity to sign, and subject matter of the agreement cannot be illegal
What factors are used when relocation out of state
Stout Hawkinson and Best Interest Factors
Common Law approach
What's yours is yours, what's mine is mine. Commingling- when property is purchased during marriage, becomes marital property and may be split
Types of Spousal Support
1) Permanent
2) Rehabilitative
3) Limited
Legal Custody
Decision-making responsibilities and parental rights and responsibilities
ND exception to waiver of spousal support
"if a prenup modifies or eliminates spousal support.. causes the party to be eligible for support under a program of public assistance at time of separation.. may require the other party to provide support to the extent necessary to avoid that eligibility"
Mileage restriction
prevents parent from moving across the state to another city (and away from where non-residential parent lives)
Partnership Rationale
Permanent Spousal Support
Traditional type
Provides support for the financially weaker spouse, for indefinite time frame
Residential Responsibility
Parent's responsibility to provide home for child
Primary - 51% or more of overnights
Equal - 50/50 overnights
UPAA unenforceability approach
2 elements:
The agreement was unconscionable
There was a lack of adequate disclosure
(look at dates and lack of detail on financial disclosure)
Slappy
3 prong burdern
1) material change
2) decline in child's condition
3) best interest of child
General Rule (split of property re: marriage length)
The longer the marriage, looks to a 50/50 split when dividing property. The shorter the marriage, looks to what is equitable when dividing property
Rehabilitative Spousal Support
One party helps other party get back on their feet. Previous economic dependent spouse can develop their earning potential. Appropriate when it is possible to restore an economically disadvantage spouse to independent economic status or to equalize the burden of finances.
Best Interest Factor J - DV
Instance resulting in serious bodily harm (hospitalization)
Instance with dangerous weapon (only one occurrence)
Pattern of DV reasonably proximate in time to proceedings
Prenup may be unenforceable if:
Involuntary (duress)
Party didn't have access to independent legal representation (reasonable time to locate, retain, obtain advice and consider advice)
The agreement didn't include notice of waiver of rights or an explanation in plain language (unless the party had independent legal counsel)
No adequate financial disclosure
Exceptions to 2 years modification rule
May motion for the court to modify prior to 2 years if necessary to serve best interest of child and there is parent alienation, harm to the child, or residential responsibility has changed to other parent for more than 6 months
Ruff Fischer Factors
1) Age of Parties
2) Earning ability
3) Duration of marriage
4) Conduct in marriage
5) Station in life
6) Necessity and Circumstances of each
7) Health and Physical Condition of each
8) Financial Circumstances
Termination of Permanent Support Factors
Remarriage
Habitual Cohabitation in a relationship analogous to a marriage for one year or more
(also death and change in financial circumstances)
ND Best Interest Factors
Love and Affection
Basic needs of the child
Child Development
Stability of the home, how much time is spent in the home
Encourage relationship between parents and child
Moral Fitness of parents and impacts on child
Mental and Physical Fitness of parents and impacts on child
Home, School, and Community records and potential effects of change
Child wishes, must show maturity
Domestic Violence
Interrelationship with people coming into the home, new partners of parents
Bad faith false allegations made of a parent to the child
Catchall
Procedural Fairness Factors
Full disclosure of net worth
The availability of independent counsel or knowing and voluntary waiver of such representation
The timing of the presentation of the agreement, giving sufficient time to review before the wedding, and
The relative bargaining power of the parties, and their relative levels of financial or legal knowledge
Stout Hawkinson Factors
1) Advantages to move
2) Integrity of motive of moving parent
3) Integrity of motive of non-custodial parent for opposing move
4) Potential negative impacts on relationship between non-custodial parent and child. Possible visitation arrangements