Pine Creek fire near Paradise Valley, Montana

This picture was taken from Interstate 90 near Livingston, Montana

Rape and Custody

Rape is in the news with the recent comments of U.S. Congressional Representative Todd Akin. Given the fact that biological fathers have constitutional level rights to parent their child, a rapist may legally assert claims to parenting time in the event his victim becomes pregnant and gives birth. Here is an article written by a rape victim recounting that experience.

Revising Equitable Division in light of Funk

This is my August 17, 2012 revision of a draft equitable division statutory proposal to replace Section 40-4-202 M.C.A. to address issues arising from Marriage of Funk, 2012 MT 14. Please give me your comments/corrections/revisions.

1.    Generally.

a.   In a proceeding for dissolution of a marriage, legal separation, or division of net worth following a decree of dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to divide the assets and liabilities of the parties, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, determine in accordance with the factors set forth below, the marital and non-marital net worth of the parties and finally apportion between the parties all assets and liabilities belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.

b.   The assets to be divided between the parties may include both marital assets and non-marital assets. An asset may be categorized as partly marital and partly non-marital.

c.    The liabilities to be divided between the parties may include both marital liabilities and non-marital liabilities. A liability may be categorized as partly marital and partly non-marital.

2.    Definitions.

a.   Marital Assets are defined as follows:

                                                              i.      All assets received or acquired by either party during the marriage except for non-marital assets.

                                                            ii.      All assets received or acquired by either party during the marriage shall be presumed to be marital assets except to the extent proven to be non-marital by clear and convincing evidence of an affirmative intention to retain the asset as non-marital.

                                                          iii.      When marital and non-marital assets have been comingled to a degree that no portion of the value of an asset is reasonably traceable to the value of a non-marital asset, the asset shall be treated as a marital asset.

b.   Marital Liabilities are defined as follows:

                                                              i.      All liabilities incurred by either party during the marriage except for non-marital liabilities.

                                                            ii.      All liabilities incurred by either party during the marriage shall be presumed to be marital liabilities except to the extent proven to be non-marital by clear and convincing evidence. 

                                                          iii.      When marital and non-marital liabilities have been comingled to a degree that no portion of the liability is reasonably traceable to a non-marital liability, the liability shall be treated as a marital liability.

c.    Non-marital Assets include premarital, gifted and inherited assets, which are defined as follows:

                                                              i.      Premarital assets: assets which were separately owned by a party before the marriage;

                                                            ii.      Gifted Assets: assets which were all gifted separately to a party during the marriage; and

                                                          iii.      Inherited Assets: assets which were separately inherited by a party during the marriage.

                                                        iv.      A portion of the value of an asset acquired during the marriage in exchange for premarital, gifted or inherited asset may be partly categorized as non-marital to the extent the asset is reasonably traceable thereto.

d.   Non-marital Liabilities are defined as follows:

                                                              i.      Premarital Liabilities: liabilities which were separately incurred by one party before the marriage; and

                                                            ii.      Liabilities secured by non-marital assets separately gifted to a party or separately inherited by a party.

                                                          iii.      A portion of the liability incurred during the marriage which repaid part or all of a premarital liability or a liability secured by a non-marital asset separately gifted to a party or separately inherited by a party to the extent the liability is reasonably traceable thereto.

e.    Post Separation. Assets acquired and liabilities incurred post separation may be either marital or non-marital depending on a court’s determination as to the extent each party directly or indirectly reasonably contributed to the existence or need for such assets or liabilities

f.       Marital Net Worth. The court shall subtract the total value of all marital liabilities (less any non-marital portion thereof) from the total value of all marital assets (less any non-marital portion thereof) to determine the marital net worth of the parties.

g.   Non-marital Net Worth. The court shall subtract the total value of all non-marital liabilities (less any marital portion thereof) from the total value of all non-marital assets (less any marital portion thereof) to determine the non-marital net worth of each party.

3.    Marital Net Worth. The Court shall equitably allocate the marital net worth between the parties. In making this apportionment the court shall consider the following factors:

a.   Duration of the marriage;

b.   Prior marriage of either party;

c.    Age and health of each party;

d.   Occupation, amount and sources of income, vocational skills, employability of each party;

e.    The parenting plan for any children of the parties, child support, medical support and the economic consequences to each party;

f.       Whether the apportionment of marital net worth is in lieu of or in addition to maintenance;

g.   Any maintenance award;

h.    The financial consequences of the allocation of non-marital net worth to each party;

i.        Whether marital assets or income have been used to pay the non-marital liability of one party;

j.        The opportunity of each for future acquisition of capital assets and income;

k.     The economic value of the contribution of a party acting as a homemaker or otherwise to the family, or directly or indirectly to the marital net worth;

l.        The dissipation or contribution of each party to the marital net worth;

m. Whether an asset is income producing or income consuming;

n.    Whether the allocation of an asset or a liability will cause a reasonably calculable tax consequence to the party to whom the asset or liability is allocated by the time the third post-decree tax returns must be filed;

o.    In the event an asset is ordered sold, the reasonable costs of sale; and

p.   The needs of the parties.

4.    Non-marital Net Worth. Each party shall be allocated their respective non-marital net worth except as follows:

a.   Increases in Value. Any increase in value of non-marital net worth of a party during the marriage that is not the result of market forces may be allocated between the parties equitably using the factors set forth in section 3 above if the increase in value results from:

                                                              i.      Investment of the earnings of either party during the marriage;

                                                            ii.      Investment of marital net worth during the marriage;

                                                          iii.      Investment of marital labor of either party during the marriage;

                                                        iv.      Indirect contribution of one party to the non-marital net worth of the other party; or

                                                          v.      Reinvested income and capital gain from non-marital net worth if either or both parties had a substantial active role during the marriage in managing, preserving or improving the asset.

b.   Decrease in Non-Marital Liabilities. In the event a non-marital asset of one party is used to pay the non-marital liability of their spouse, the court may allocate a portion of the non-marital net worth of the spouse to the party who paid the liability.

c.    Entire Value. The entire non-marital net worth of both parties, including all increases in value during the marriage regardless of cause, may be allocated between both parties equitably using the factors set forth in section 3 above if the court finds by clear and convincing evidence that one party’s combined marital and non-marital net worth are otherwise so inadequate as to work an unfair hardship to that party or to the children of the parties.

5.    In a proceeding, the court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children of the parties.

6.    Each spouse is considered to have a common ownership in marital property that vests immediately preceding the entry of the decree of dissolution or declaration of invalidity. The extent of the vested interest must be determined and made final by the court pursuant to this section.

7.    The division and apportionment of marital property caused by or incident to a decree of dissolution, a decree of legal separation, or a declaration of invalidity is not a sale, exchange, transfer, or disposition of or dealing in property but is a division of the common ownership of the parties for purposes of:

a.   the property laws of this state;

b.   the income tax laws of this state; and

c.    the federal income tax laws.

8.    Premarital agreements must be enforced as provided in Title 40, chapter 2, part 6.