Family Law Overview Part II1


Family Law - Part II LEG400 December 10, 2011

Within this paper an overview of family law will be highlighted. The impact and state

Child support. They must provide assistance regardless if families are receiving public assistance or not. The FPLS will then utilize an assortment of federal databases to trace the absent parent.2 requirements by the Child Support Enforcement and Establishment of Paternity Act of 1974 will be discussed. This paper will also describe the pros and cons of artificial insemination from a sperm bank versus a known donor. These state agencies provide assistance in locating absent parents by collaborating with their own state Parent Locator Service Agency or the Federal Parent Locator Service (FPLS) which is operated by OCSE. lawyers. IV-D agencies are also required to establish and enforce child support awards. duration. distribution. and establish paternity. lump-sum support. The significance of Levy v. OCSE is the national agency that requires each state to develop IVD agencies within their state to oversea and administer a comprehensive child support program. The difference between permanent alimony. and tax implications will be highlighted. The State IV-D agency resources must be utilized first before federal assistance can be authorized. Classification of property. and judges in creating more consistent awards of child support but not to order exact amounts in all circumstances. Guidelines are designed to assist parties. and rehabilitative support in spousal support will be examined. periodically review awards. marital property division and valuation. and tax implications will be analyzed. Child support guidelines address problems of inadequate and inconsistent awards by computing specific numeric criteria. enforcement. States must elect an approach and decide what income is subject to the support . The goal of the Child Support Enforcement and Establishment of Paternity Act of 1974 is to compel absent parents to become monetarily accountable for their children. Every state is impacted by the passage of the 1974 Act and the establishment of the federal Office of Child Support Enforcement (OCSE). guidelines. Louisiana and the legal framework for paternity issues will be discussed.

The adjusted gross income base considers tax obligations. dividends. profits shares. Income cannot be manipulated and is a simple approach. 278). Imputed incomes such as jewelry or antiques are considered imputed assets that do not produce income. p. 2011. J. The benefit of the percentage-of-income approach is its ease of a flat percentage support amount of the noncustodial parent. It is criticized for ignoring the increased expenses of the custodial parent that they now have to pay and the non-economic contributions by the custodial parent to benefit the childs’(rens’) well being. and governmental benefits. The theory behind the income-shares approach is the assumption that despite of the dissolution of marriage parents should continue to share the financial obligations had the family stayed together. 2011. or net income. They may elect the percentage-of-income. adjusted gross income. rents. annuities. The definition of income almost always includes investment earnings. p. Voluntary unemployment or underemployment will be factored into the support equation and is considered attributed income. 277). It is believed to be an accurate and fairest approach but does not permit . self employment. yet it does measure income accurately. J.Family Law Overview Part II3 obligation (Ehrlich. The gross income base approach determines the support amount by the obligor. or the hybrid Melson formula approach. income-shares. non-voluntary payroll deductions before making a support obligation determination.. A state may elect one out of the three guideline approaches to adopt. such as social security retirement and unemployment benefits (Ehrlich. Instead it is an attempt to shield assets from consideration in support and forms a benefit. Imputed or attribute income concepts are recognized in the guidelines. Income must be defined and the relevant income base must be determined.. Support can be calculated based on gross income. royalties. The disadvantage of its ease is the inequitable results from multiple factors that are not considered.

Marital fault or wrong doings are factors that are . physical and mental health. 2011.. There are two basic rules when it comes to tax implications regarding child support awards. 302). It can be determined before the age of majority through emancipation. 2011. 297). Financial need. age. duration of the marriage. J. The net income base allows discretionary voluntary deductions in addition to the adjusted gross income. In general eighteen is the age of majority regarding support obligations. parental death. adoption. or termination of parental rights. income and financial resources. Federal law requires that all child support orders must include a wage withholding provision that enables support payments to be withheld by payroll deduction.. The second rule entitles the custodial parent to claim the dependents for tax purposes. This age can be terminated before or extended after the age of majority.4 discretionary deductions. Such payments are a tax-neutral event. or is mentally or physically disabled. J. earning potential. attending college. p. They can bring about criminal nonsupport or contempt actions. Criminal nonsupport is classified as a misdemeanor while contempt actions can be civil or criminal in nature (Ehrlich. States are mandated by federal law to file liens against real and personal property in the amount of unpaid support. Liens can arise without a required action by the custodial parent. Support arrears can be reported to credit bureaus by the state IV-D agency after proper notice and opportunity has been given. the marital standard of living. p. and contributions to the marriage are factors judges consider when deciding alimony payments. The first rule is that child support payments are not includible income to the recipient (Ehrlich. This approach can be manipulated to reflect a reduced income yet it is the most accurate. Child support is enforced at the state and federal levels. Spousal or maintenance support is traditionally referred to as alimony. It can be extended after the age of majority if the child is still in high school.

Contempt actions are the primary enforcement mechanism and the actions can be civil or criminal in nature. classification. Another approach courts consider is the unspoken acknowledgment of entitlement because it is earned and the need in the ALI’s Principles of the Law of Family Dissolution is obvious.. and the parties must not be cohabitating. payments must be in cash.Family Law Overview Part II5 considered and balanced against the other factors. Some of the changes are the remarriage of the receiver. Spousal awards may include a wage withholding provision that enables support payments to be withheld by payroll deduction. Lump-sum support is also referred to as alimony in gross which involves the payment of a definite sum. lump-sum support. cohabitation. J. p. The basic rule of includibility/deductibility is that the payor is entitled to a deduction from gross income. . 329). and rehabilitative support. For payments to qualify as alimony. court ordered. They can be enforced across state lines under the Uniform Interstate Family Support Act (UIFSA). Rehabilitative support awards can be overturned and courts have become wary in long-term marriages. They are permanent alimony. Numeric criteria and guidelines take the guesswork out and allow parties to negotiate their differences based on the understanding of what the courts are likely to do (Ehrlich. It is either paid in a single payment or in periodic installments and is non-modifiable based on a change of circumstances. 2011. Rehabilitative support is also referred to as transitional support that allows time-limited support for the recipient spouse to grow and be financially self-sufficient. There are three approaches to structuring spousal support. The property distribution process is broken down by defining property. It is not subject to duration limits but is subject to termination based on a change in circumstances. or the death of the obligator. Permanent alimony provides monetary support to the spouse in the economically weaker position that is payable on an ongoing regular basis.

car. Property is divided after the property has been classified. or at the cutoff point at the date of legal separation. Assets can easily be presumed as marital property and the burden of proof is placed on the party who claims it is separate property. The equitable distribution divides the property in a manner that is described as fair. Property transfers during or after a marriage are not a taxable event if they are incidental to a divorce. It can also be distinguished by property acquired in contemplation of marriage. or equitable (Ehrlich. p. . It can be determined by adjudication and acknowledgment. just. pensions. transferred. touched. There are two standard divisions. Voluntary acknowledgment is a simple procedure that enables the father to complete and sign a sworn statement identifying himself as the father. Intangible may not be seen. and visitation rights with non-marital children. J. Tangible property can be seen. support. Children who are born out of wedlock must have their legal paternity established in order to preserve their benefit rights such as child support payments. Property can be tangible or intangible. or the goodwill of a business. Adjudication is a paternity proceeding that attempts to identify the father through DNA testing. The fair market value approach is the common approach that helps to establish the value of the marital assets. The value and nature of the assets will influence the allocation of marital assets. or initiation of a permanent separation or dissolution. The equal distribution standard divides marital property equally between the spouses. and is transferable such as a house. or difficult to value such as a professional degree. equal or equitable. Paternity is a precondition for establishing official rights. and distribution. 2011. during cohabitation.. and furniture. touched. 376). Marital property can be distinguished by determining the time of acquisition by either the inception of title rule or the source of funds rule. Classification of property is crucial because it determines the pool of assets that is subject to division and influence the approach that the judge and attorneys distribute the assets.6 valuation.

circumstances that children have no control over. and the father’s medical records. physical and mental health. and collect health and genetic information from their donors. they test semen for diseases. Other negative aspects of a sperm bank are not knowing what the donor looks like. With a known donor health. The negative aspect is the possibility of the donor’s right to sue for visitation or custody of the child and issues regarding parenting may occur. They may wish to be involved in the child’s life and it is more cost effective. and frozen semen is not as vigorous as fresh sperm. Paternity was not an issue and there was a mother-child bond.Family Law Overview Part II7 social security payments. Louisiana was the state of Louisiana’s violation of the equal protection clause. The Supreme Court reversed the low court’s decision based on discrimination against illegitimate children. The Supreme Court recognized that the parent-child bond was not dependant on the marital status of the parents and the child suffered wrong and was entitled to his right to recovery. . family history. characteristics and personality is known. The goal of the Child Support Enforcement and Establishment of Paternity Act of 1974 is to compel absent parents to become monetarily accountable for their children. There are very positive aspects of using a known donor for artificial insemination. They both can bring about criminal nonsupport or contempt actions. sperm banks can be pricey and not covered by insurance. insurance benefits. However. inheritances. The significance of Levy v. Property must be defined. or net income while alimony support is calculated by the financial need and unspoken acknowledgment of entitlement. Some of the positive aspects of using a sperm bank for artificial insemination are: they require donors to waiver all parental rights. The state denied a child’s right to recover after the death of his mother. Child support guidelines are calculated based on gross income. adjusted gross income. which may delay successful impregnation.

before it can be distributed following dissolution. or at the cutoff point at the date of legal separation.8 classified. One must decide the possibility of a future legal conflict or the donor’s wavier of all parental rights. insurance benefits. inheritances. valued. and the father’s medical records. social security payments. . There are positive and negative aspects of using a known or unknown sperm donor. during cohabitation. Establishing legal paternity is vital to a child in order to preserve their benefit rights to child support payments. or initiation of a permanent separation or dissolution. Marital property can be distinguished by assets acquired in contemplation of marriage.

Retrieved on 12/5/2011 from http://www. 5th Ed. Aspen Publishers Introduction to the Emerging Issues in Paternity Establishment Project.asp . (2011) Family Law for Paralegals.mamashealth.Family Law Overview Part II9 REFERENCES: (n/a).hhs. NY. J. Retrieved on 12/5/2011 from http://aspe. New York.htm Pros and Cons of Using Sperm Bank. (n/a).

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