FAMILY LAW
Questions & Problems[1]
Professor Coombs
Fall 2005
Set One
Day 1
Consider the reasons for the change to no-fault and the patterns of marriage and divorce that occurred at the time of the legal change and since. What might be the benefits of a return to fault, as has happened in some states by “covenant marriage”? How does the judge’s role change under fault and no-fault?
Day 2
Prepare the following exercise. It will form a significant part of the discussion for this class. Assume you are the lawyer for the husband (if you are female) or the wife (if you are male) and apply the relevant Florida statute (§61.075). Where the correct answer is unclear, be prepared to defend the best plausible argument for your client. [The primary focus should be on issue A.]
A. What property is available for equitable distribution? In determining this, be careful to note that a piece of “property” may include both marital and non-marital elements. For each piece of property or element thereof, be prepared to state whether it is the sole property of the wife, the sole property of the husband, or marital.
B. How should the marital property be distributed between the spouses?
Husband Hal and Wife Winnie have been married for 15 years and are now divorcing. They have no minor children, although Hal adopted Winnie’s daughter from a previous marriage, Doris, who is now 23 and comfortably on her own.
Hal is a division manager at Bigco and has worked for them for the last 12 years.. His salary last year was $55,000; it was $50,000 the year previously. If Bigco continues to be profitable he can expect his salary to continue to grow. In addition to his salary, Hal has also received stock options ever since he became a division manager; the company encourages its managers to “have a stake in the venture.” The Bigco stock he has obtained by exercising these options is now worth approximately $20,000.
Until two years ago, Winnie worked as an accountant; the last few years she did so, she made approximately $35,000/year. Approximately six years ago, Winnie decided to fulfill her dream of becoming an art historian. She attended graduate school while working full-time and two years ago obtained a Ph.D. in art history. She now teaches art history at the local community college and earns $25,000. She also does part-time accountancy work with her old firm during tax season, earning an additional $5,000 per year.
Hal and Winnie believe savings are important. They managed their money carefully, covering all their expenses with Winnie’s paychecks and some of Hal’s. This money is deposited in a working checking account, from which the family’s bills are paid. According the most recent statement there was $3000 in the account. As often as they could, sometimes every other month, sometimes every three months, they would take Hal’s check for that month and put it into mutual funds. That investment fund is now worth $35,000.
The house in which they live was purchased by Hal during their engagement, for $70,000. He put $10,000 down and took out a mortgage for the rest. Shortly after the marriage they retitled the house as tenants by the entireties. They have faithfully paid down the mortgage ever since (out of Winnie’s and Hal’s paychecks). Only $20,000 remains to be paid on the mortgage. Thanks to inflation in the real estate market, the house is now worth $140,000.
About ten years ago, Winnie’s grandmother died and left her a vacation cottage in Maine. At the time, it was worth approximately $25,000. They have spent much of every summer there since then and Winnie has done a lot of remodeling, expanding the cottage from two rooms to four. Nearby cottages have increased in value approximately 50% over the ten years (e.g. a cottage worth $10,000 ten years ago would now sell for $15,000). Winnie and Hal recently had an unsolicited offer to buy the cottage for $60,000.
Winnie has a 2001 Toyota; its current book value is approximately $8,000. Hal’s car is a 2003 Acura. Its book value is $18,000; there is still $5,000 owing on the car loan.
Winnie has some lovely jewelry. The two particularly valuable pieces are a pearl necklace Hal gave her when they were engaged, worth $4000, and a diamond necklace he gave her for her birthday three years ago, worth $5000.
In addition to the mortgage and the car loan, they have an outstanding loan to First National Bank for $15,000. The money was borrowed to pay for Winnie’s tuition for her Ph.D. program.
Hal is the one who asked for the divorce, but Winnie concedes that the spark left their marriage long ago. He was very helpful when she was working and going to school; he took over all the cooking and did approximately 60% of the total homemaking work. Hal has rarely been at home in the last year, however. In the early years of the marriage, especially while Doris lived at home, Winnie did approximately 85% of the cooking and other homemaking work.
Your client -- Hal or Winnie as the case may be -- wants your estimate of the best plausible case you can make for them in terms of division of assets (and debts). Assume that they want to divide things up and each go their own way; neither wants to be entangled in ongoing spousal support payments.
Day 3.
Be prepared to argue for H or W in each of the following hypotheticals, applying the Florida statutes and the other materials in the assignment. I will probably call on two students to briefly argue each case and then ask the rest of the class to indicate how they would rule, indicating in particular what kind of spousal support, if any, they would grant (without indicating specific dollar amounts) and why. Assume in each case that there is only a modest amount of marital property to be divided.
a. Alice and Bob have been married for ten years. Bob is a well-paid executive. They have two children, nine and seven. Alice worked as a dentist until the birth of their first child. Although Bob has urged her to go back to work, at least part time, for the last several months she has, consistent with their plans when they married, been a stay-at-home parent and wishes to do so until the youngest child has graduated from high school.
b. Carol and Dave married seven years ago, when Carol was 55 and Dave was 70. Dave was very wealthy and they have lived on the income from his non-marital assets plus Carol’s small pension from the job she retired from when she married Dave. Both Carol and Dave have serious health problems: Dave’s life expectancy is only a year or two, while Carol is likely to live many more years, but in ill health.
c. Eileen and Frank have been married for sixteen years. They have a nine-year old daughter, for whom Eileen has been the primary parent. Eileen has worked throughout the marriage, sometimes at two jobs. Frank, who is alcoholic, has worked only very intermittently. He is a plumber and has always kept his membership in the union, though he has not kept up with current developments in the field. He has significant health problems which make it difficult for him to squat or to stand for long periods.
Day 4
a. Re pensions
Assume I begin work for Genco at 25 and can retire and draw a pension at age 65. I marry George when I am 30 and we divorce when I am 50. Further assume that the present value of my pension is $240,000. What is the presumptive value that George can claim at divorce? What specific facts about the pension might you want to know in preparing to litigate over this value? How should the division of property be arranged so that George obtains the value to which he is entitled?
b. Re professional practices and degrees:
Are these property that can be subject to division at divorce? What is the meaning of the goodwill of a dentist or lawyer’s practice? If we conclude that a practice or a degree is not property subject to division, how else might we take it into account in setting up the financial consequences of a divorce?
One possible answer is “reimbursement alimony” (see Mahoney @ p.493): consider what the amount of reimbursement alimony should be in the following case:
Alice has been in school for the prior three years and has just graduated. During those three years, George has worked, earning $20K/year. Alice has worked one summer, and earned a total of $6K over the three years. Alice’s tuition and fees have cost them $12K per year, and they have taken out education loans of $4K per year and paid the rest from current income. The rest of the money they have earned has been used in paying living expenses: they have no assets and no debts other than the education loans.
Day 5.
If a client came to you and said he/she was about to marry, would you suggest the client execute a prenuptial agreement? What would you need to know to advise the client? Would you ever propose that a prenuptial agreement include unenforceable clauses? Be ready to interview a “client” and obtain the information you think you might need to draft a prenuptial agreement.
Be prepared to discuss the problems on pp.752-53.
[1] Note that some of these exercises have been used in prior classes; the benefit comes from doing the exercises (and thus being able to apply relevant law). Getting answers from a prior student provides no benefit to you on the exam, on the Bar or in practice.