Divorce 61: Terminal illness should not play a significant role in the distribution of the parties’ property.

In this case, the trial court awarded plaintiff a lesser portion of the marital estate because of her illness and anticipated short life expectancy. The trial court awarded plaintiff a life estate interest in the marital home, while granting defendant a remainderman interest. The court also granted plaintiff a life estate interest in the personal property located at the marital home. Defendant was awarded a remainderman interest in the marital-home personal property.

Division of Marital Assets

Once a trial court determines which assets are to be considered marital property, it may apportion the marital estate between the parties in a manner that is equitable in light of all the circumstances. Mathematical equality is not required, but any significant departure from congruence must be clearly explained. An unequal distribution of the marital estate is not inherently inequitable, so long as an adequate explanation for the distribution is provided.

Property Division Factors

The following factors are to be considered wherever they are relevant to the circumstances of the particular case: (1) duration of the marriage, (2) contributions of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life status of the parties, (6) necessities and circumstances of the parties, (7) earning abilities of the parties, (8) past relations and conduct of the parties, and (9) general principles of equity. There may even be additional factors that are relevant to a particular case.

Court Decision

The trial court’s division of the marital estate was essentially fashioned around providing plaintiff with just enough assets to keep her afloat and in good care until her soon-to-be-expected death, instead of simply dividing the marital estate as if plaintiff were like any other litigant. Her terminal illness should not have played such a significant role in the distribution of the parties’ property. Furthermore, awarding life estate interests in real and personal property because plaintiff had a terminal disease was, at a minimum, questionable. Awarding life estate and remainder interests to the parties in a divorce action is the antithesis of finality, leaving one ex-spouse waiting on the death of another to obtain fee ownership.

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Family Law 84: Trial court must issue a PPO if it determines that there is reasonable cause.

The petitioner bears the burden of establishing reasonable cause for issuance of a PPO, and of establishing a justification for the continuance of a PPO at a hearing on the respondent’s motion to terminate the PPO.

DIVORCE 70: Plaintiff filed an ex parte motion for temporary custody of the marital home and children.

Defendant filed an answer, countering that it was in the children’s best interests for the parties to share joint legal and joint physical custody. During the divorce proceedings, plaintiff filed an ex parte motion for temporary custody of the marital home and children, which the trial court granted.

DIVORCE 69: Trial court enforcement of marriage settlement agreement drafted prior to divorce.

The parties had several meetings about dissolving their marriage and dividing their assets. These conversations culminated in a marriage settlement agreement, drafted by D, which the parties both signed in June 2016.

DIVORCE 68: A change that substantially reduces the time a parent spends with a child could potentially cause a change in the established custodial environment.

If the proposed change alters the established custodial environment, the party seeking the change must demonstrate that the change is in the child’s best interests.

DIVORCE 67: The parties agreed to submit their post judgment of divorce issues to binding arbitration.

The arbitration agreement broadly granted the arbitrator the authority to decide the post judgment of divorce issues that were pending before the trial court.

FAMILY LAW 80: The trial court denied plaintiff’s motion to change domicile.

The trial court noted plaintiff’s testimony that the move was designed to provide KSJ with more stability, however, that since the evidentiary hearing, plaintiff’s employment changed again, with her new work hours resulting in frustrating the current parenting time exchange schedule.

DIVORCE 66: Defendant not entitled to any portion of the house’s appreciated value.

When one significantly assists in the acquisition or growth of a spouse’s separate asset, the court may consider the contribution as having a distinct value deserving of compensation.

DIVORCE 65: Both parties were ordered to cooperate with the supervised parenting time and reunification therapy.

The trial court entered a consent judgment of divorce, awarding sole legal and physical custody of the children to mother, but awarding father supervised parenting time.

FAMILY LAW 78: Trial court denied respondent’s motion to terminate the PPO.

Respondent moved to terminate the PPO. Respondent asserted that petitioner’s allegations were false. A proceeding on respondent’s motion to terminate was held with a family court referee, not a trial court judge.

FAMILY LAW 77: Court awarded plaintiff sole legal custody; defendant was unwilling to work with plaintiff.

For joint custody to work, parents must be able to agree with each other on basic issues in child rearing including health care, religion, education, day to day decision making and discipline and they must be willing to cooperate with each other in joint decision making. If two equally capable parents are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.