Prenuptial Agreements in Tennessee Essay PDF

**[ESSAY]** **[Prenuptial Agreements in Tennessee]** **Step 1 of Essay) Elements under UPAA** **Step 2 of Essay) Elements of valid prenup in Tennessee** - TCA 36-3-501 - **Freely** - **Knowledgably** - **In good faith** - **Without exertion of duress or undue influe...

**[ESSAY]** **[Prenuptial Agreements in Tennessee]** **Step 1 of Essay) Elements under UPAA** **Step 2 of Essay) Elements of valid prenup in Tennessee** - TCA 36-3-501 - **Freely** - **Knowledgably** - **In good faith** - **Without exertion of duress or undue influence upon either spouse** - The terms of such agreement shall be enforceable by all remedies available for enforcement of K terms. **Step 3 of Essay) Enforceability of the Prenup--The burden of proof in Tennessee (who has it and what it is)** - **Preponderance of the evidence** - On the party trying to enforce it - To **enforce** a valid prenup the party wanting to enforce the prenup has the burden of proving by a POE that: - **there was full and fair disclosure of the nature, extent, and value of his or her holdings was provided to the spouse seeking to avoid the agreement** - **OR** - **That disclosure was unnecessary because the spouse seeking to avoid the agreement had independent knowledge of the full nature, extent, and value of the proponent spouse's holdings.** **Full & Fair Disclosure Factors** - **Relative sophistication of the parties** - **Apparent fairness or unfairness of the substantive terms of the agreement** - **Any other circumstance unique to the parties and their specific situation** - Full and fair disclosure does not require that each and every asset be revealed with complete exactness, but it does require that each party be given a clear idea of the nature, extent, and value of the other party's property and resources. **[Four Main Types of Spousal Maintenance in Tennssee (*Tenn. Code Ann. § 36-5-121)*]** - [Terminated]: upon the death of the recipient or payor. **Does NOT auto terminate upon remarriage.** - [Modified]: upon a showing of a **[substantial and material change]** in circumstances. - [Extension]: For rehabilitative alimony to be extended beyond the term initially established by the court, or to be increased in amount, or both, the recipient of the rehabilitative alimony shall have the burden of proving that all reasonable efforts at rehabilitation have been made and have been unsuccessful. **2. Alimony in futuro (periodic) -- permanent -- aka Periodic** - [What is it?]: Awarded when there is a relative economic disadvantage of recipient-rehabilitation is not feasible**,** - (disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that make the standard of living after the divorce reasonably comparable to that during the marriage) - [Terminates]: automatically and unconditionally upon the **death or remarriage** of the recipient or death of the payor. - [Duration]: Long term or until death or remarriage - [Rebuttable Presumption]: If recipient lives with a third person recipient **[does not need the support],** and the court should suspend **all or part** of the alimony obligation of the former spouse - [Modified]: substantial and material change in circumstances. - [What is it?]: a sum of money payable by one (1) party to, or on behalf of, the other party for a determinate period of time. - Transitional alimony is awarded when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce, legal separation or other proceeding where spousal support may be awarded, such as a petition for an order of protection. - Transitional alimony **shall be nonmodifiable unless:** - \(A) The parties otherwise agree in an agreement incorporated into the initial decree of divorce or legal separation, or order of protection; - \(B) The court otherwise orders in the initial decree of divorce, legal separation or order of protection; or - \(C) The alimony recipient lives with a third person, in which case a rebuttable presumption is raised that: - \(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or - The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse. - Transitional alimony **shall terminate upon the death of the recipient**. - Transitional alimony **shall also terminate upon the death of the payor,** unless otherwise specifically stated in the decree. - The court may provide, at the time of entry of the order to pay transitional alimony, that the transitional alimony shall terminate upon the occurrence of other conditions, including, but not limited to, the remarriage of the party receiving transitional alimony. - known as lump sum alimony, is a form of long-term support, the total amount of which is calculable on the date the decree is entered, but which is not designated as transitional alimony. - may be paid in installments if the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. - The **purpose of this form of alimony is to provide financial support to a spouse, to enable the court to equitably divide and distribute marital property, or both.** - may be awarded for attorney fees and expenses incurred in connection with the proceedings through the date of the final hearing and any proceedings brought pursuant to Rule 59 of the Tennessee Rules of Civil Procedure. - When determining whether attorney fees and expenses should be awarded as alimony in solido, the court shall consider the following: - A final award of alimony in solido **is not modifiable, except by agreement of the parties only.** - Alimony in solido is **not terminable upon the death or remarriage** of the recipient or the payor. - ***ANY OF THESE OR IN COMBINATION OF THESE MAY BE AWARDED UPON DISSOLUTION OF A VALID MARRIAGE*** - ***consider alimony last because assets make difference in the necessity of alimony award.*** - ***Determine whether valid marriage to dissolve, then calculate the assets and divide as separate and marital, child custody/support, then look at alimony.*** **Factors of Determining Alimony** - There are 12 but big bev says 4 main ones - In order - Need of payee spouse - Ability of payor spouse to pay - Spouse not at fault should not be in worse financial position - Spouses post-divorce financial position should approach equitable **[Effect of an agreement as to child custody or child support in prenups ]** - You CANNOT agree in a prenup to modify child support - You may not K away any rights to the child, custody or support [ ] **[Waiting periods for finalizing divorces in Tennessee after filing for divorce ]** **Waiting periods** **Why they exist** - **regardless of whether the divorce is based upon irreconcilable differences or not, the waiting period for a divorce** - **without children = 60 days** - **with children = 90 days.** **[Four Steps to Property Division ]** **Definitions of them** 1. **Identification** a. All property or assets owned by either or both spouses should be identified b. Consideration should be given to assets held by third party individuals or corporate entities 2. **Classification** c. Aka characterizing d. Determining whether property is subject to division by the court (is a marital asset) 3. **Valuation** e. Determining the value of assets so that an "equitable" distribution can be made (inventory/schedule of assets) 4. **Distribution** f. Final apportionment of assets to one spouse or the other. **Examples of how you would do each/why** **[Best Interest Factors]** \(1) The love, affection and emotional ties existing between the parents or caregivers and the child; \(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver; \(3) The importance o f continuity in the child\'s life and the length of time the child has lived in a stable, satisfactory environment; provided, that, where there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a nonperpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody; \(4) The stability of the family unit of the parents or caregivers; \(5) The mental and physical health of the parents or caregivers; \(6) The home, school and community record of the child; \(7) preference of the child-if 12 or older; - The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children; \(8) Physical or emotional abuse to the child, to the other parent or to any other person; provided, that , where there are allegations that one (1) parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings; \(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person\'s interactions with the child; and \(10) Each parent\'s or caregiver\'s [past and potential for future performance of parenting] responsibilities, including the [willingness] and ability of each of the parents and caregivers to facilitate and [encourage a close and continuing parent-child relationship between the child and the other parent] consistent with the best interest of the child. **[MULTIPLE CHOICE ]** - **Void/voidable---capacity/duress/insanity---when and how effect** - Void--invalid==never married==gets annulment - BI--bigamy - They were still married when they married the new person - C--capacity - Insane or minor - 17-18 is voidable - 17 and under is void - After 18 for age, the only person who can say it is void is the person who was a minor when they got married - Before 18, but were married before 17 a third party or the state can assert that the marriage was void - For insane, any third party, at any point, even after death, can assert that the marriage was void - C--consanguinity - Incest - Voidable--will determine if valid or invalid based on the facts and if found invalid will yield an annulment BUT if found to be valid by the court it will yield a divorce - But the person who doesn\'t want the annulment might use marriage by estoppel or implied partnership to get something more than an annulment to have more rights to the others property - Age - Being between 17-18, when you turn 18 you ratify it - Duress - Fraud, fear, mistake - Lucidity - You float in and out of right state of mind so the court will have to determine if you were lucid at the time of the marriage and while you got the license - When going to the courthouse to pick up the marriage license, cannot be drunk, insane, etc. - Impotent - Cant have kids and didn\'t know it going into the marriage - Wife pregnant by another man without knowledge by Husband - **Prenups---what makes them valid or invalid** - Repeat from essay - **Postnups---elements and counsel** - **Rights and obligations of stepparents** - 9/24/24 slides [TN Grandparent's rights ] Visitation will be granted if there is a finding of harm that would result if there isnt a visitation (if the kid's parent is dead OR if they lived w grandparents for 12mo+ there is a presumption of harm) - If grandparents want visitation and parents object grandparents must show -- - \[1\] a parent is deceased [rebuttable presumption of substantial harm] - \[2\] child has lived with GP for 12 months or more, and was later removed [rebuttable presumption of substantial harm] - \[3\] a parent is divorced from other parent, - \[4\] a parent has been missing for not less than (6) months, - \[5\] another state has ordered GP visitation, **[OR]** - \[6\] the child and the grandparent maintained a significant existing relationship for a period of twelve (12) months immediately preceeding the severance or severe reduction of the relationship, done by the parents for reasons other than abuse, and the severance is likely to occasion "substantial emotional harm to the child."\] - **[AND]** SECOND, a GP must demonstrate that the child [has OR will experience] "substantial harm" if visitation is NOT ordered AND - \[A\] the loss of that relationship is "likely to occasion severe emotional harm to the child," - \[B\] the GP functioned as primary caregiver and that the cessation of that relationship "could interrupt provision of daily needs of the child and thus occasion physical and emotional harm," **[OR]** - \[C\] the loss of the relationship "presents the danger of other direct and substantial harm to the child". [Same-sex stepparent-] no statute authorizing visitation by a non-parent after the termination of a same-sex relationship. [Siblings]- There is no statutory authority for sibling visitation. [Step Parents:] "(a) In a suit for annulment, divorce or separate maintenance where one (1) party is a stepparent to a minor child born to the other party, such stepparent may be granted reasonable visitation rights to such child during the child\'s minority by the court of competent jurisdiction upon a finding that such visitation rights would be in the (a) best interests of the minor child **[and]** that such (b) stepparent is actually providing or contributing towards the support of such child. \(b) Such decree shall remain within the control of the court and be subject to such changes or modification as the exigencies of the case require." - **Heartbalm actions---alienation/conversation/breach of promise** - action for lost opportunity and frustrated expectations - **Alienation of affection** - Elements: - Marriage was good - Love and affection between spouses lost or diminished - The wrongful and malicious acts of the third-party adulterer caused the loss - Defenses - Lack of knowledge of marital status (by the defendant--side piece/intrusive mother in law) - Marriage wasn\'t good to begin with - **Conversation** - Elements: - Marriage was good - Love and affection between spouses lost or diminished - The wrongful and malicious acts of the third-party adulterer caused the loss - Sex - BOP=preponderance of the evidence that the cheating spouse had an opportunity to cheat and a disposition - Disposition--same age and level of intelligence, they didn\'t go to the hotel to hangout, they had sex - **Breach of promise to marry** - A signed writing OR two disinterested witnesses - Witnesses cannot be mom and dad - **Doctrines** - **Coverture or Unity/Separate spheres**  - **Bigamy/consanguinity/affinity** Bigamy- marrying more than one person. The mormons Consanguinity- incest Affinity- relation by marriage - **Constitutional right to believe but not practice/limitations on constitutional rights---different levels of constitutional scrutiny and when they apply/miscegenation---Loving v. Virginia** Fundamental rights to marriage, privacy, and to raise your children ----------------------- ------------------------------------------------------ ----------------------------------------------- Strict Scrutiny Necessary to serve a compelling state interest Fundamental rights, race, ethnicity, religion Intermediate Scrutiny Substantially related to an important state interest Gender and legitmacy Rational Basis Reasonably related to a legitimate state objective ----------------------- ------------------------------------------------------ ----------------------------------------------- - **UCCJEA/UIFSA generally---homestate/bases for initial determination/what order were they implemented? PKPA? UCCJA? UCCJEA?** - **[Jurisdiction]** - The jurisdiction of the child's home may enter into a child support order. Under the full faith and credit clause and UIFSA, *states must enforce valid child support orders of sister states*. - **[Jurisdiction---UCCJEA]** - The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") **governs jurisdiction in a child custody case** and has been **adopted in all 50 states**. A state may ***exercise jurisdiction if it is the home state of the child*** **at the time the proceedings** began or **within 6 months of the proceeding and a parent still resides in the jurisdiction.** A **[child's home state]** is the ***state in which the child lived with a parent for six consecutive months before commencement of the proceeding.*** If **no jurisdiction is deemed to satisfy the home-state standard**, then jurisdiction is appropriate in the ***state where there is substantial evidence related to the custody dispute and there is a significant connection between the parties***. If no such state exists or if the court declines jurisdiction, then **[any state may have jurisdiction]**. A court may decline jurisdiction if it is an **[inconvenient forum.]** The **initial court entering the custody order** will have ***continuing and exclusive jurisdiction.*** - A state should decline to exercise jurisdiction if the decision would best serve the purposes of the UCCJEA by **promoting the use of a more convenient forum** and by **deterring abductions and unilateral removals of children.** - - **[Presumptions]** - The child of a married woman is presumed to be the child of her husband if the child is born during their marriage or within 300 days after the termination of marriage. - **[Modification of Another State's Order ]** - The ***interstate modification of the child custody decree*** is governed by the **federal Parental Kidnapping Prevention Act (PKPA)** and the **Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).** - Under the **PKPA**, a state **may not modify a custody order** ***if one of the parties continue to reside in the issuing state*** and, under that state's laws, the **court continues to have and does not decline jurisdiction.** - Under the **UCCJEA**, the court that made the initial custody determination has ***continuing, exclusive jurisdiction over the matter*** until the court determines that: (1) ***neither the child nor parents continue to reside in the state*** or (2) the ***child no longer has a significant connection with the state and substantial evidence relating to the child's care, protection, training, and personal relationship is no longer available in the state***. - **[Parental Kidnapping Prevention Act]** - Under the federal **Parental Kidnapping Prevention Act ("PKPA"),** states ***must enforce a custody order of another state,*** but only if the **state entering the custody decree has home state jurisdiction.** The jurisdictional standards are substantially similar to the UCCJEA. - The PKPA will prevail over the state law under the Supremacy Clause. - **Defenses for adultery: know them all** - **Absolute divorce/annulment/legal separation and synonyms for these/when they apply** - Absolute divorce-- - Legal separation--mensa et thorno - From bed and board - Annulment--divorce a viniculo - void abinitio - Forever from the beginning--as if it never happened - **Full faith and credit/ lex loci/comity (synonyms for each other)** - Full faith and credit--state courts respect the laws and judgments of other states - Courts will give full faith and credit to spousal support decrees of the courts of a sister state if the sister state had proper jurisdiction and the decree is valid in the sister state. - Lex loci- a marriage valid where is was performed is valid everywhere [unless] repugnant to public policy of the state of domicile or state laws - Comity--when one jx respects the laws of another - **[Uniform Interstate Family Support Act ]** - Under UIFSA, a **court that enters a child support** order has ***continuing exclusive jurisdiction*** unless ***all of the parties (including the parents and children) no longer reside in that state*** or they ***agree that the state no longer has jurisdiction***. - **WOOSNAM** - **Tracing** - If property can be traced back to when property was separate it can be kept separate - Car example - Buying a new car with money sold from an old car owned by only H before the marriage--the new car will still be separate property bc it was bought with separate property funds - **Alimony and when terminate/is modifiable** -  - **Registration of foreign orders/effect---when a state must be given full faith and credit/comity and when NOT** - **Marriage as a "contract" or "status"** - **Doctrine of necessaries/Enoch Arden** - Deals with someone who disappears for a period of time and favors the person who did not leave - **Marriage creates support obligations for the other spouse. Under the [doctrine of necessaries,] a creditor who has furnished "necessaries" to a spouse may, in most states, sue the other spouse of and recover on the debt. However, this doctrine is available only to a creditor who has *already provided* goods or services. The creditor has no power to obtain an order altering a spouse's future spending.** - - **History of Tender Years Doctrine---who often got custody originally? Why?** - Started with paternal presumption--men were more fit - Then switched to this--women were more fit to nurture children during their tender years - If a child is of the tender years, and the parents are equally fit, the tender-years presumption requires the trial court to award custody to the mother. - assumes that the mother is better suited to care for and nurture young children. - **unconstitutional** gender-based classification under 14^th^ Amendment. - Primary-Caretaker Preference: Looking at date proceedings started -- *who was primary?* Because then presumption comes in and absent a showing of unfitness, should go to primary. -- presumption is a FACTOR. - Now those are abolished and its 50/50 - **Taxability of child support/alimony** ### Tennessee Taxability of Child Support and Alimony #### Child Support - Not Taxable to Recipient: As with federal law, child support payments are not taxable to the recipient parent in Tennessee. - Not Deductible for Payor: The paying parent cannot deduct child support payments from their taxable income, in line with federal rules. - No State-Specific Variations: Tennessee adheres to the federal tax treatment for child support, so there are no state-specific rules that differ from the federal framework. #### Alimony (Spousal Support) 1. Divorce Agreements Finalized Before January 1, 2019 (pre-TCJA) - Taxable to Recipient: Alimony payments were taxable to the recipient (the spouse receiving alimony) in Tennessee, just like under federal tax law at that time. - Deductible for Payor: The paying spouse could deduct alimony payments from their taxable income. - State-Specific Nuance: Tennessee law might influence how alimony is awarded, but the tax treatment was historically in line with the federal rules before the 2019 changes. 2. Divorce Agreements Finalized On or After January 1, 2019 (post-TCJA) - Not Taxable to Recipient: For agreements finalized on or after January 1, 2019, alimony is no longer taxable to the recipient under federal law, and Tennessee follows this rule. - Not Deductible by Payor: Similarly, alimony is not deductible by the payor spouse. - State-Specific Treatment: Tennessee does not apply different rules for alimony taxability or deductibility post-2019; the state follows federal changes in treatment. - **Elizabethan poor laws---why they were important to family law** - Laws enacted to help poor people - Forced them to go back to where they were born - Send you home and then require the local authorities to take care of you or your family - One of the first times that the idea of spousal/family support started - 1400s - **Engagement ring/gifts/what happens if the marriage is called off? Majority Jx.** - Treated as a conditional gift and will need to be returned to the donor - **Types of contempt for failure to pay child support---how do they differ?** - criminal contempt can be in the civil court--you can ask for criminal contempt for failure to pay child support in the civil family court - You can have jail time with both civil and criminal - The different for criminal v. civil contempt with child support - Civil contempt orders--The obligor would be committed to the county jail until he paid his obligation or until his flesh rotted from his bones. - Essentially with civil contempt, you have the keys to the courthouse door--you can get yourself out of jail at any time by paying--says this in the book - You have the keys to your own jail cell - With criminal contempt however it is a violation of the order of the court. Not just child support violation, it is any violation and the court can order you to go to jail for a set period of time for contempt--it is a criminal penalty, not civil and whether you come up with the money or not while in jail it does not matter bc you will stay put and serve your time - **Reasons claimed for why no-fault divorce was bad** - Undermines the Institution of Marriage: Devalues the commitment of marriage by making it easier to dissolve without proving fault. - Encourages Divorce Over Reconciliation: Incentivizes divorce instead of promoting conflict resolution or therapy. - Unjust Outcomes for the \"Innocent\" Spouse: Treats both parties equally, even if one violated marital vows, which critics argue is unfair. - Economic Disadvantages for Women: Leaves economically dependent spouses, often women, vulnerable due to less financial accountability. - Negative Impact on Children: Critics believe it leads to family breakdowns that harm children's emotional and social well-being. - Erosion of Social and Religious Values: Undermines traditional moral and religious principles that view marriage as lifelong and sacred. - Increase in Divorce Rates: Correlated with higher divorce rates, attributed to the reduced legal and financial consequences. - Potential for Exploitation: Allows one spouse to unilaterally leave the marriage, potentially blindsiding or financially disadvantaging the other. - Loss of Accountability: Eliminates the opportunity for wronged spouses to seek acknowledgment of harm or justice. - Challenges in Asset Division: Judges focus on financial fairness, ignoring marital misconduct like infidelity or financial irresponsibility. - **Guardian v. Attorney Ad litem---differences** - - **BCSO vs. AGI---all terms from the child support guidelines you dealt with in the midterm assignment** - Here's a breakdown of \*\*Basic Child Support Obligation (BCSO)\*\* and \*\*Adjusted Gross Income (AGI)\*\* under child support guidelines, along with relevant terms that may have appeared in your midterm assignment: - Key Terms and Definitions **Basic Child Support Obligation (BCSO)** - Definition: The presumed monetary amount needed to meet a child's basic needs, derived from state-specific child support tables. - Calculation: - Based on the \*\*combined adjusted gross income (AGI)\*\* of both parents. - Adjusted for the number of children involved. - Reflects average costs for housing, food, transportation, education, and health care. - Purpose: Serves as the foundation for calculating the total child support amount owed before adjustments. **Adjusted Gross Income (AGI)** - Definition: The gross income of each parent, adjusted for specific deductions outlined in child support guidelines. Includes: - Wages, salaries, commissions, and bonuses. - Rental income, dividends, and interest. - Business income or self-employment income. - Any other income sources, such as alimony or pensions. Excludes: - Child support received for other children. - Benefits received for other dependents. - Income specifically excluded by law (e.g., certain disability benefits). Related Terms in Child Support Guidelines - Parenting Time Adjustment - Definition: A reduction in the BCSO to reflect the number of days the noncustodial parent spends with the child. - Purpose: Recognizes the financial contributions of the noncustodial parent during their parenting time. - Health Care Costs - Definition: Medical insurance premiums and uninsured medical expenses for the child, which are typically added to the BCSO. - Work-Related Child Care Expenses - Definition: Child care costs incurred to allow a parent to work or attend school, added to the BCSO. - Extraordinary Educational Expenses - Definition: Costs for private school tuition, tutoring, or specialized education programs, considered as a deviation from the BCSO. - Other Extraordinary Expenses - Definition: Includes activities like sports, music lessons, or special medical needs that justify a deviation from the standard support calculation. - Self-Support Reserve - Definition: A minimum amount of income that must be preserved for the obligor's basic needs, ensuring they can still meet their own living expenses. - Deviation Factors - Definition: Situations where the court deviates from the calculated child support obligation due to special circumstances, such as: - High-income or low-income parents. - Shared custody arrangements. - Additional support needs of the child or parents. - How BCSO and AGI Interact - 1\. Combine AGI: The incomes of both parents (after adjustments) are totaled to calculate the combined AGI. - 2\. Refer to Child Support Table: The combined AGI is matched with the number of children in the state's child support table to determine the BCSO. - 3\. Allocate Responsibility: Each parent's share of the BCSO is proportionate to their percentage of the combined AGI. - 4\. Adjust for Expenses: Add health insurance, child care costs, and extraordinary expenses, then apply parenting time adjustments and deviations as necessary. - **Division of marital property---UMDA v. ALI schemes** - **Uniform Marriage and Divorce Act (UMDA)** - Purpose: Provides a statutory framework for equitable division of marital property in divorce. - Key Principles: - Equitable Distribution: Property is divided equitably (fairly), not necessarily equally. - Marital Property Only: Division focuses solely on property acquired during the marriage. - Separate Property Exclusion: Property acquired before marriage, by gift, inheritance, or personal injury settlement, is excluded. - Factors Considered: - Contribution of each spouse to the marital property (monetary and non-monetary, such as homemaking). - Value of each spouse's separate property. - Financial circumstances of each spouse post-divorce. - Custodial arrangements and their impact on property needs. - Policy Rationale: Focuses on simplicity, finality, and efficiency in resolving property disputes. - Critiques: - Too rigid and simplistic for complex financial situations. - Fails to address post-divorce financial equity or economic sacrifices made during the marriage. - **American Law Institute (ALI) Principles** - Purpose: Provides a flexible approach to achieve fairness post-divorce, based on marriage as an economic partnership. - Key Principles: - Marital Partnership Theory: Marriage is treated as an economic partnership, and the division reflects each spouse's contributions and needs post-divorce. - Marital Property Includes Earning Capacity: Considers enhanced earning capacity (e.g., degrees, professional licenses obtained during marriage) as marital property. - Compensatory Payments: Provides payments to address: - Economic sacrifices made for the other spouse's career or education. - Significant economic disparity post-divorce. - Post-Divorce Needs: Strong emphasis on ensuring financial equity after the divorce. - Factors Considered: - Contributions to earning capacity or economic sacrifices made during the marriage. - Disparities in post-divorce earning potential or financial stability. - Shared parenting costs and long-term child-related financial needs. - Policy Rationale: Prioritizes fairness, compensating for economic sacrifices and ensuring equity. - Critiques: - Overly complex for practical application. - Some argue enhanced earning capacity should not be treated as property. Comparison of UMDA and ALI  What to Know for a Family Law Exam 1\. Policy Rationale \- UMDA: Simplicity, efficiency, and finality in property division. \- ALI: Fairness and equity, addressing economic disparity post-divorce. 2\. Enhanced Earning Capacity \- UMDA: Excluded from division; not treated as marital property. \- ALI: Treated as marital property due to joint sacrifices during marriage. 3\. Non-Monetary Contributions \- UMDA: Recognizes contributions like homemaking but doesn't compensate for sacrifices explicitly. \- ALI: Compensates for economic sacrifices through compensatory payments. 4\. \*\*Hypothetical Scenarios to Prepare For\*\* \- Stay-at-home spouse supporting the other's education or career. \- Enhanced earning capacity (e.g., medical degrees, law licenses). \- Division of property with pre-marital contributions or inheritance. 5\. Exam Strategies \- Compare and Contrast: Be ready to compare UMDA and ALI schemes directly in essays. \- Policy-Based Analysis: Discuss which framework better serves fairness or finality. \- Issue Spotting: Look for terms like enhanced earning capacity, contributions, or economic disparity in fact patterns. \- Argue Fairness: Discuss fairness from both spouses' perspectives (e.g., high-earner vs. non-earning spouse). - **Income share model v. the percentage the obligor's income model of child support** - Income Shares Model - TENNESSEE FOLLOWS - parents incomes are combined. Care for the kid is statutorily determined. The parents pay for care based on their proportions of income - Percentage Shares Model- Use table to determine % the noncustodial parent is responsible for based on the number of children they have and charge them that %.  - **Basis for reduction of child support/modification** - an existing child support order is NOT subject to mod unless there is: - a 15% or greater change (7.5% for low income) in the non-residential parent's gross income - there is a change in the \# of children for whom the non-residential parent is responsible and is providing support, - a child who is being supported is disabled - the parents enter into an agreed order to modify according to the guidelines and submit complete worksheets. **OTHER** - **Voluntary underemployment** - **Common Law Marriage** - Only 15 states continue to recognize -- NOT TN (only recognize before certain date) - If couple were married at common law, divorce was available - Some states required clear and convincing evidence (or preponderance of the evidence) - Elements: - No license to marry - Couple lives together without interruption (\# of years prescribed by state) - Hold themselves out to others as married couple - Eligible to be married (age, no-bigamy, not close kin, not insane) - **A common law marriage requires two adults to *agree they are married*, *hold each other out to the world as spouses*, and *co-habit as a married couple*. For sufficient holding out, courts look to conduct such as using a common last name, opening joint bank accounts, and telling others in the community that they consider themselves married.** - **An exchange of consents between two people with capacity** - **Cohabitation (no specified time is required)** - **A holding out publicly of living together as spouses** - **Note: While abolished in most states, if a valid common law marriage is** - **Marriage by Estoppel** - Marriage is invalid - One party believes (in good faith) marriage is valid - Marriage has lasted for substantial length of time - Declaration of marriage is invalid would be unjust or inequitable - Public policy can trump here (bigamy) - **Implied Partnership** - **Best interest factors** - **Second Look Doctrine**