Volume 19, Number 7
Domestic Relations Law
Mary Ann R. Baker-Randall
ack in law school, we all learned the mantras of key legal concepts. For torts, it's Duty, Breach, Cause, and Injury. For contracts, it's Offer, Acceptance, and Consideration. I never took a class in domestic relations law, but it is now my chosen field of practice. Lawyers outside family law areas would do well to remember this mantra: Property, Debt, Alimony, and Children.
Whether you practice in a community property or equitable distribution state, divorce actions must address these four broad categories and should cover jurisdiction and fault/no-fault as well.
Did the couple acquire the property during the marriage or with marital assets? If so, it's probably going to be allocated during the divorce. "Property" includes key assets such as retirement benefits. The common exceptions to community or marital property are assets received by gift or inheritance or the proceeds of separate property. Many states presume property is community or marital, and the burden is on a party to prove property is "separate."
Other buzzwords relating to property are "transmutation" and "commingled." Transmuted property is that which started out as separate property but is now legally community or marital property by virtue of the way the couple treated it during the marriage. Commingled property is separate and community property that was used in such a way that the court cannot now clearly say whether it is separate or marital and must pick one category (usually marital).
If the couple accrued the debt during marriage or it was secured by marital assets, it's probably going to be allocated during the divorce. This includes credit card debt, even if one spouse did not know about the other spouse's plastic frenzy, in community property states. Also, watch out for gambling debts; some states have passed specific legislation protecting the nongambling spouse. Check your statute.
The concepts of transmutation and commingling apply to debts as well as property, but they may be called something else in your state.
Alimony, a/k/a spousal support or spousal maintenance, is an explosive area of a divorce. Both spouses are concerned with how much and how long, assuming the requesting spouse even is eligible to seek alimony. The requesting spouse bears the burden of proving both the need for a specific amount of money to maintain a "reasonable" standard of living post-divorce and the paying spouse's ability to pay that amount, given the overall divorce settlement and any child support. Alimony is taxable to the payee and deductible to the payor.
Alimony comes in several forms. Short-term alimony (also called transitional alimony) typically enables one spouse to get reestablished in a new household. Long-term alimony is payable for many years-sometimes until the receiving spouse dies or remarries. Rehabilitative alimony provides financial support to a spouse undergoing training to become more employable, often by going back to school and working part time. Lump-sum alimony really isn't alimony; the receiving spouse simply gets a larger portion of the marital assets instead of a monthly check.
When minor children are involved, the couple must address custody, visitation, and child support. Custody encompasses decision making about the children, i.e., residence, religion, recreational activities, education or daycare, and nonemergency medical treatment. Visitation (also called timesharing or periods of responsibility) covers arrangments for the children to spend time in each parent's care. Child support deals with both parents' legal obligation to financially support their children. How child support is calculated varies tremendously from state to state. (See www.supportguidelines.com for child support information and calculations for most states, U.S. territories, and some foreign countries.) Child support is not included in the receiving parent's income for tax purposes and is not deductible by the paying parent.
Jurisdiction. All states have a minimum period of time the petitioner must reside in the state before being able to file for divorce, usually six months. The petitioner's satisfying the state-law residency requirement to file for divorce does not necessarily confer jurisdiction to decide custody or child support. States have adopted some form of the Uniform Child Custody Jurisdiction Act (UCCJA) or the more recent Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Both acts have a litany of criteria to decide what state has authority to render custody and visitation decisions, initially and for enforcement or modification purposes. The acts define the child's legal "home state," a key element of which is where the child resided during the six months before the petition was filed. If the child lived in state A for three years but moved to state B with mom five months ago, mom has to file for custody in state A.
The Uniform Interstate Family Support Act (UIFSA) presently controls child support in most states. This statute covers arrangements under the jurisdiction of more than one state. For example, a divorce may entail two cases in two different states: the divorce jurisdiction and custody jurisdiction under UCCJA/UCCJEA in state A (the children's "home state"); and child support jurisdiction under UIFSA in state B (where the paying parent resides). To avoid multiple cases and under certain circumstances, the parents can consent to child support jurisdiction in one location under UIFSA.
Fault vs. No-Fault States. Many states offer no-fault divorce in which the legal ground for dissolution is "incompatibility" or "irreconcilable differences." In a no-fault state, spousal misbehavior is not relevant to allocating property, debt, alimony, or children. In fault states, the person seeking the divorce must prove the grounds upon which the marriage is dissolved, such as adultery, abandonment, or cruel and inhuman treatment. Private investigators often are hired to spy on the cheating spouse, which adds to the cost of divorce-in time, money, and emotional upheaval.
This crash course should give general practitioners enough information to talk intelligently to potential clients or to buy time to refer the matter to more experienced attorneys. Remember: "Do not try this at home. Trained professionals are performing the stunt."
Mary Ann R. Baker-Randall, a board-recognized specialist in family law in New Mexico, frequently writes and presents on family law and small law office management topics.