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Divorce
Child Custody
Child Support
Visitation
Alimony
Marital Property and Monetary Award
Use and Possession of Real and Personal Property
ALIMONY
Alimony is the periodic payment for the support and maintenance
of a spouse and may be awarded upon a limited or absolute divorce.
Alimony may be awarded to either party and is awarded for a definite
or indefinite period of time. Alimony for a definite period of time
is commonly referred to as "rehabilitative alimony"; alimony for
an indefinite period of time is commonly referred to as "permanent
alimony". An award of alimony is not an automatic entitlement but
is determined on a case-by-case basis upon its own set of facts.
Alimony as a lifetime pension which enables a spouse to maintain
an accustomed standard of living has generally been replaced by
the concept that a spouse should be required, through rehabilitation,
to become self-supporting, even if the result is a reduced standard
of living.
A court is required to consider many factors in determining whether
to award alimony and, if awarded, the amount and duration. Some
of these factors include the financial needs and resources of each
party; the age, physical and mental condition of each party; the
ability of the party seeking alimony to be self-supporting; and,
the facts and circumstances that contributed to separation.
Alimony pendente lite is a temporary award of alimony by
a court for the support of a spouse while a limited or absolute
divorce is still pending. An award of alimony pendente lite
is based solely on the recipient spouse's immediate support need,
independent of marital fault, until a divorce is granted. The purpose
of alimony pendente lite is to maintain the status quo between
the parties so that a dependent spouse will not suffer financial
hardship during the divorce litigation.
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MARITAL PROPERTY AND MONETARY AWARD
One primary issue in most divorces is the identification and valuation
of marital property. Marital property is defined as all property
acquired by one or both parties during the marriage, regardless
of title. It does not include property acquired prior to the marriage;
property acquired by inheritance or gift from a third party; property
excluded by valid agreement between the parties; or property directly
traceable to any of these above sources.
Whether property is marital or non-marital, or partly marital and
partly non-marital depends not upon how the property is titled,
but upon the source of payments used to acquire the property.
Almost every divorce involves items of real and personal property
such as homes, furniture, automobiles, financial accounts and pensions,
acquired both before and during the marriage. In most instances,
it is relatively simple to determine which items are marital or
non-marital. Where, however, a marriage is one of many years with
substantial assets acquired through loans, gifts or inheritances
"mixed" in an account with marital funds, identifying the marital
or non marital nature of the property becomes a difficult and substantial
task, but a necessary one.
A court must resolve ownership rights to property according to title
only. It does not have the power to transfer ownership of real or
personal property from one spouse to the other. A court, however,
does have the power to order jointly titled property sold and the
discretion to award a monetary award concerning the sale proceeds
in favor of one spouse against the other. All marital property must
be identified and valued. The sole purpose of identifying and valuing
marital property is to form a basis upon which a monetary award
may be granted. A monetary award is a lump sum payment from one
spouse to the other designed to accomplish an equitable division
of property where actual distribution of property or its proceeds
in accordance with title would be unfair and inequitable. For example,
if a home is titled in both spouses names but one spouse has made
substantial pre/non marital payments towards the purchase of the
home, a court may award a monetary award in favor of the spouse
who made such contributions to be paid by the other spouse.
A court may award only one monetary award and any award is limited
the total value of marital property.
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USE AND POSSESSION OF REAL AND PERSONAL PROPERTY
A court may award use and possession of the family home and use
of family personal property to a spouse who has been awarded custody
of a minor child of the parties. (Step children are not included).
Three prerequisites must be satisfied before such use and possession
may be awarded: (i) one spouse must have grounds for divorce, either
absolute or limited; (ii) an award of custody of a minor child of
the parties is granted to that spouse; and (iii) a demonstrated
need for the minor child to continue to live in the family home
is established. The purpose of such use and possession of the home
and personal property is to permit a minor child to continue to
reside in the community in which he or she is familiar. A court
may also order that either or both parties pay any mortgage payments
or rent; insurance and taxes or similar expenses of the family home
during the use and possession occupancy.
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DIVORCE AND FAMILY LITIGATION - page 1
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