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Today the level of divorces is increasingly high, and that is the main reason why there are numerous issues between the spouses, who want to receive appropriate amount of the assets. This case is a rather common situation, which occurred between Tom and Louis, and it is important to investigate how their property should be divided, the level of support from Tom after the divorce, and entitlement of Louis in the partnership, taking into consideration the fault claims, which can affect the court’s decision.
On the breakup of the relationship Tom and Louis should be entitled to the half of “matrimonial assets”. The matrimonial asset is any property which was acquired by Tom or Louis from the first date of the marriage till the last day. So, in this case matrimonial assets can be considered their two homes, a primary residence and the vacation home, including their savings and the stock market investments. There should be pointed out that the home, even if the sole owner of it is Tom, should be considered the marital asset and can not be sold without the consent of Louis. So, all the houses should be either sold and the money should be split in half for Tom and Louis, or try to find the alternative how to share their assets.
New question rises about whether Louis has right to demand the share of investment firm. This is considered to be business asset, which is the exclusion from the matrimonial asset. So, court may not recognize the right of Louis to demand, or there should valuation process take place in order to investigate the contribution of Louis to the existence of the business asset, or the share of the investment firm in this particular case. Louis will appeal to the fact, that she has been contributing to the family wellbeing while Tom was working, so she participated in the accumulation of this asset, even though it was in indirect way.
However, as far as it can be judged, the valuation process might be not in favor of Louis demand due to the fact, when Tom has started the company after the children did not need the same amount of care, and Louis did not have to spend so much time with them. Moreover, at that time Louis has started drinking, paying much less attention to the family and its wellbeing. So, the decision of the court on this asset might be negative for Louis.
Also the division of personal property depends on the fact when it was bought. If this property was already possessed before the marriage by Tom or Louis, then it belongs to the spouse, who bought it at that time. However, if the property was bought when they were married then it can be again considered the matrimonial asset and according to the presumption it should be divided in half between the spouses. So, the question when this property was purchased is the most significant for the court.
The next issue, which should be solved in this case, is the spousal support, which supposes that one of the spouses is paying the support money to their former spouse. In most of the cases, it is the husband with much high amount of the income, who pays the support to his former wife. The same situation is in our case.
Louis is likely to demand for the support from Tom, also appealing to the fact that he has a stable source of income now, which is much higher than hers, and more importantly the fact of adultery from the side of her former husband. However, to receive this support, Louis should provide clear and convincing proof of the fact of adultery. It will be rather hard, and Louis will probably have to hire certain service in order to gather the evidence without breaking the laws.
If Louis manages to provide this evidence to the court, which will be recognized to be true, then Tom might appeal to the certain circumstances and factors, which led to the adultery and the split of the family. In particular, Tom will provide the facts about the drinking experience of Louis, and its effects on the family and his act of adultery. By providing such information, Tom may pay the support for a limited time or the lower amount than it was demanded from Louis. On the other hand, looking at the undeniable ability of Tom to provide the support, it can be said that this decision will be in favor of Louis. On the other hand, the decision of the judge is rather unpredictable and depends on the provided evidence from the side of Louis and Tom.
Another controversial issue, which can emerge is the issue of the child support. The child support means that parents are obligated to pay for the support of their children, regardless of the fact whether children live with one of the separated spouse or not. So, it will be investigated with which of the spouse, Tom or Louis, children should live. It is very likely, that due to the fact that Louis has certain negative addictions, and possible negative effect on the children, children will live with Tom, who will cover the costs of the child support.
As it was written, there can be facts of comparative fault from the side of Tom, which is the adultery, and from the side of Louis, which is the drinking addiction which had negative consequences on the family. However, Tom’s fault can be considered much more significant, comparing with the fault of Louis.
In the end it can be concluded, that the issue of the property division and long process of ascertaining the level of spousal support could have been prevented by signing the marriage contract before the marriage.
Today the importance of the contract is neglected by many future families, and moreover, it is considered to have the negative effect on the family. However, this statement can be argued, because by signing the contract the spouses protect themselves from the expensive and long lasting cases, which do in fact make the relationships between two spouses much worse.
Lebey, Barbara. “AMERICAN FAMILIES Are Drifting Apart.” USA Today (Society for the Advancement of Education). 2001: 20.
Riley, Glenda. Divorce: An American Tradition. Lincoln, NE: University of Nebraska Press, 1991.
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Souter, David H. “Leading Cases: I. Constitutional Law.” Harvard Law Review 111.1 (1997): 197-439.