Family Law Essay Example

Real example of what are grounds for divorce

Rita and Paul have been married for a period of ten years and have two children. Off late, there have been misunderstandings between the couple. Rita complains that Paul is preoccupied with his job such that he does not spend enough time with his family. The fault ground presented is the issue of abandonment by which Paul is not meeting up to his duties. The main challenge is that both individuals want sole custody of the children with the view that Rita has medical problems and Paul is preoccupied with his work. She also bases her arguments on alimony, child support and the division of property.

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How is property divided in a divorce

Since Paults name is the only name present in the houses title deed, he has to present the documents indicating the purchase of the house. They include the title deed, the title deeds affidavit and the bill of sale if anything else came with the house; things like security systems, air conditioner, and appliances. Paul also needs to present documents illustrating their joint accounts and the total amount of money that the couple has together. Paul also needs to present his previous pay slips and documents showing the benefits he obtains from his profession such as the pension. He also needs to present his license that shows that he is a certified professional able to manage his own practice in addition to tax documents that show his financial credibility. He also needs to include receipts on household expenses, and other expenses involved with child care.

According to the federal law, the pension received by as spouse can be viewed as separate property and hence does not require division. In other words, it is considered a sole property and not a community property by which there exists an absolute right. However, courts, as per the instructions of the Uniformed Services Former Spousest Protection Act, are expected to view disposable pay in terms of community property. In this case, while Paul can have a full entitlement to his pension, the other assets owned by the family are subjected to division. They include the house, car, and money in the joint accounts. However, Rita spent $100, 000 in the improvements of the house and therefore, she has the right to share in his pension as per the Qualified Domestic Relations Orders (QDRO). Therefore, Pauls pension is treated as a community property. The couple had made a prenuptial agreement whereby they disclosed their income before getting married such that in the case of a divorce, they knew what they were going to divide. The property includes the house and the cars.

Spousal support after divorce

As per the court order, Rita receives $700 as spousal support and earns a monthly salary of $ 1300. If the court views Pauls pension as sole property despite Ritats monthly salary being limited, under the Family Code Section TI 4321(a), the court may stick to denying the entitlement of the pension. According to the section: "In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances:

(a) The party has separate property or is earning the party's own livelihood, or there is community property or quasi-community property sufficient to give the proper party support". The spousal award may be increased if the wife is denied entitlement to the perceived community property by which the Court terms it as the sole property of the husband. In Rita and Paults case, Rita may be awarded the house due to the sole property ownership of Paults pension. Furthermore, Rita took part in the management of the house and ensured that repairs were done when necessary especially since Paul was always away for work. The stocks and bonds are also subjected to the division as they make part of the community properties.

Child custody in unmarried family

For the joint custody, a parent with the highest income is expected to engage in child support. Therefore, with Ritats health condition and limited salary, Paul gets the responsibility of providing child support.

Both Rita and Paul want full custody of their children by which they have had huge disagreements. The court may consider the occupation and the physical health of the parents. Paul appears to be preoccupied with which he operates his own practice and is also an employee and hence having less time to spend with his family. Rita, on the other hand, has a medical condition that requires attention and care. The court may issue a joint custody to the parents whereby both Rita and Paul share in parenting rights and the living environment of the children. Such a decision will allow both parents to spend equal time with the children (Diduck & Kaganas, 2012). However, both have to be keen on child support such that laws are not broken in regards to meeting the needs of the children. Paul due to his financial stability will have to provide child support due to Ritas condition that might interfere with her employment.

The enforcement of the divorce decree when one of the parties fails to comply with any part of the decree.

An enforcement motion may be issued by one spouse if the other party fails to comply with any part of the decree. Other factors include if a partner engages in criminal conduct, civil contempt, garnishment, and issues regarding IRS full collection. For example, if Paul does not abide by the demands issued regarding child support, Rita may present the issue to court by which the court will order Paul to adhere to the obligations in addition to being fined for non-compliance. However, if he has a reason for not meeting up to his duties, Paul may present an affirmative defense to explain his reasons (Estin, 2009).

References

Estin, A. L., (2009). Sharing Governance: Family Law in Congress and the States. Cornell Journal of Law and Public Policy, 18(2).

Diduck, A., & Kaganas, F. (2012). Family law, gender and the state: Text, cases and materials. London: Bloomsbury Publishing.