by Kristin Kirkner | Jan 1, 2013 | Child Support, Custody, Family Law
Post Decree Modification of Child Support
Generally, child support is a noncustodial parent’s obligation to support a child until he reaches age 18, graduates from high school, or is otherwise emancipated. A child can be emancipated through a statutory process by entering the military service or by getting married. If a child is disabled or suffers from a debilitating disease, the support obligation can continue beyond those events. If a child attends college, there may be no statutory basis for child support but there may remain an obligation to provide post-high school tuition, costs, fees, and room and board.
When a child support award is entered, it is usually based on a statutory calculation that considers the number of children to be supported by the obligor, who is the person responsible for paying the support; the assets of the obligor; and the amount of income received by the obligor from all sources. Those factors are the background that existed at the time the support award was entered. Often, as the years pass, the needs of the children change; or perhaps the obligor’s ability to pay changes. All support obligations are modifiable in the future to take into consideration those changes. Either parent may petition the court for modification.
Generally, the petitioning parent may be entitled to a modification in child support when the parent can show evidence of a drastic change in the parties’ income and earning abilities, the assets available for support, employee benefits due each party, the costs of rearing the children, the health conditions of the parent or the child, and a change in custody. Some states will also accept as change evidence that a party has a new spouse with additional income or evidence that new family responsibilities have arisen. Generally, courts will not consider evidence of change that was created by the obligor, who seeks to reduce his child support obligation, as those courts believe that the obligor was aware of his responsibility to provide support and should not have undertaken new obligations that impaired that responsibility.
Written Order
Most states require a judge to approve an order that changes a party’s obligation to pay child support because a judge has a duty to act in the best interests of the child and to insure that the parties do likewise. All states recognize that a modification in child support must be reduced to writing in order to be valid and effective. No matter how well parties get along, no party is justified in relying on the other party’s oral acceptance of the oral modification. A court is not bound by the parties’ informal modification agreements and can hold a party in contempt of court if he or she fails to comply with the court order that is on file. Unless a modification agreement is reduced to writing and made a part of a court’s file, the modification may not be valid or enforceable.
by Kristin Kirkner | Jan 1, 2013 | Family Law
A parent may be liable for a minor’ s torts. The parent may be found liable if the parent was negligent in their actions. The parent may be liable for an injury inflicted by the minor, if the injury was the natural and probable consequence of the parent’ s negligent act. The injury should be reasonably foreseeable due to the parent’ s negligence.
by Kristin Kirkner | Jan 1, 2013 | Divorce, Family Law
Annulment is the nullification of marriage, and most states allow it only on very narrow grounds. One such ground is mental incapacity at the time of marriage. The law expects that the parties entering the marriage contract should be able to understand the nature and consequences of marriage.
Mental incapacity can be described as the absence of the capacity to make decisions for oneself or the ability to express such decisions. As such, mental incapacity may be due to mental illness, stroke, Alzheimer’s disease, congenital disability, and brain injury, among other causes.
Under the law, a marriage is voidable in cases where either of the spouses is incapable of understanding the contract of marriage. Some states hold that if the party is incapable of understanding because of insanity or serious mental disorder, the marriage is void. Some state statutes provide that mental illness can be a ground for annulment if the defect prevents the afflicted spouse from appreciating the contract and conferring thoughtful consent to the marriage. Mere mental weakness alone cannot be a ground for annulment in some states. Moreover, mere variation from normal human behavior or human thinking is insufficient to justify adjudging a person as mentally ill.
In the case of a ward who has been declared mentally incapable before the marriage, the ward’s guardian can give consent on behalf of the ward for the marriage. Without such guardian consent, the ward’s marriage becomes void or voidable. Such a marriage can be annulled because it was without the consent of the guardian, and the ward was incapable of consenting to the marriage. In that situation, the guardian can bring an action to annul the marriage on behalf of the ward. A mentally ill person can enter a valid marriage if he or she is capable of understanding the nature and expectations of marriage. The ability to understand the duties and the responsibilities associated with marriage is the key factor for evaluating mental capacity to enter into marriage.
The foremost evidence to prove a spouse’s mental incapacity is adjudication of mental incapacity by an appropriate authority. That usually involves expert testimony by a psychologist or psychiatrist. A marriage with a person who is mentally incapable usually is valid and legally binding unless and until a court annuls it.
by Kristin Kirkner | Jan 1, 2013 | Divorce, Family Law
Divorce statutes in most states consider several defenses in case of fault-based divorce, such as recrimination, condonation, reconciliation, collusion, and connivance. States traditionally have allowed mental illness as a common law affirmative defense in fault-based divorce actions, particularly against charges of adultery, cruelty, and desertion. Under a typical scenario, the defendant was required to plead the defense and prove that mental illness prevented the defendant from recognizing that the offending act was wrong. In states that allow fault-based divorce and that have detailed statutory schemes governing divorce actions, the general movement has been to limit or eliminate common law divorce defenses such as mental illness.
Mental illness can be defined as a person’s inability to manage his or her own personal affairs, health, property, or day-to-day activities or the inability to express personal opinions, desires, wishes, feelings, and intentions due to brain damage or mental incapacity, mental disorder, imperfect or delayed brain development, or impairment or deterioration of the brain.
Mental incapacity is the basic inability to understand the consequences of conduct of the afflicted person and of others. The main way to prove a spouse’s mental incapacity is by adjudication of mental incapacity by an appropriate authority. This usually involves expert testimony by a psychologist or psychiatrist. Confinement to a mental health or rehabilitation institution also can be persuasive evidence of mental illness or incapacity.
To use mental illness as a defense to a fault-based divorce action, the afflicted party generally must prove that he or she was not able to understand and recognize that the offending act was legally wrong. When considering mental illness as a defense to fault-based divorce, courts examine the severity and the degree of mental illness and whether the mental incapacity is responsible for the alleged divorce grounds. If the party is found to be able to understand the consequences of his or her conduct, then mental illness usually fails as a defense. Generally, the mental impairment should of the same severity and degree as those used in the criminal law context.
by Kristin Kirkner | Jan 1, 2013 | Divorce, Family Law
Date of Valuation With Respect to Property Division in Divorce
One important factor in property division in divorce is the date of valuation of the spouses’ assets and liabilities for purposes of dividing marital property. The courts must consider the date of valuation in order to establish a consistent basis for determining a fair distribution of marital property. Fixing values for different assets and liabilities at different times can affect the true value of assets and liabilities that a spouse receives.
Each state has its own rules for determining the date of valuation. Most courts use one of three dates: the date the divorce petition is filed, the date of the final hearing, or the date of the decree. Some states use the date of actual separation.
In cases in which the spouses have a property division agreement or a prenuptial agreement, the court can accept the valuation date stipulated in the agreement. For assets that change value rapidly, courts may vary from the normal dates if necessary to achieve an equitable valuation and division.
For assets with seasonal price fluctuations or assets with high price volatility, such as volatile securities or commodity inventories, courts can use an average price or a moving average of the price computed over a time interval. Courts perhaps are less likely to deviate on their own from a fixed valuation date, and are more likely to rely on expert testimony to support a deviation from a fixed date. When both parties are well represented by counsel, courts are more likely to allow the parties to stipulate to valuations and the dates used to fix valuations.
by Kristin Kirkner | Jan 1, 2013 | Child Support, Custody, Family Law
Retroactive Child Support Awards
In most states, initial child support awards may be made retroactive to the date of filing and modifications may be retroaction to the date a modification is requested. In some states, retroactivity is mandatory, and in others, it is discretionary.
Initial Awards
Most of the time, the first child support award is made retroactive from the date of filing. In some states, a child support award may be retroactive to a period prior to the petition for support. If the mother received welfare benefits, child support may be awarded retroactive to the date benefits were first paid. Any payments made between the effective date of the child support order and the date the court makes a determination of support will be credited against any retroactive amount found to be due. In California, an order for child support may be made retroactive to the date of filing, but if the parent ordered to pay support was not served within 90 days and he did not evade service, the order may not be effective before the date he was served. In Florida, an order of support may be retroactive to the date the parties separated, but no more than 24 months prior to the filing of the petition. In Indiana, an award may be retroactive to the date of the child’s birth.
It is often the case that the first child support award is a temporary award, made before the parties have been able to fully discover all of the income of the parents and expenses of the child. In such cases, when child support is finally determined, there is a reluctance to alter the amount owed while the temporary order was in effect, particularly where the parent who pays child support has met his or her obligation. However, where there is a significant difference in the amount of support or if a parent had intentionally hidden or reduced his or her income, a tribunal may award a retroactive increase.
Modification
When a court modifies an award of child support, it may make the award retroactive to the date that a modification was requested, but it cannot go beyond that date. It is within the discretion of the tribunal as to whether to make the award fully or partially retroactive to the date of filing. In some states, a person seeking modification must present evidence demonstrating why the order should be retroactive to the date of the date of filing. In other states, retroactivity is presumed, unless the court is decreasing the amount of support.
