Why is &quot;standard of living&quot; a consideration in divorce asset division? Why is &quot;standard of living&quot; a consideration in divorce asset division for adults at all, if children aren't involved? In my layman's mind: Nobody is entitled to a &quot;standard of living&quot;. Just because you lucked out to marry a high-net-worth or high-earning individual, it should not &quot;entitle&quot; you to live the good life in perpetuity after you stopped being married. This is separate from the idea that a spouse may have contributed to said high-earning status by supporting their career, which is a far valid - but a wholly separate - reason in divorce court. For example, I assume a judge can apply &quot;standard of living&quot; idea even if the wealthy spouse can show that the wealth/income didn't change upwardly during the marriage; and that the spouse didn't contribute economically at all, due to paying for hired help to do house chores, and no children resulting etc... It seems like a moral hazard, in that it encourages lower income earners to trick higher income earners into marrying them under false pretenses, just to divorce them after a couple of years for a big payout in raised standard of living, or to simply not be a good spouse since they won't suffer in the divorce. Ideally, I'm looking for an authoritative answer to &quot;why&quot;, for example a reason given by a judge establishing precedent, or a politician proposing the law that passed which establishes the idea). However, a solid legal analysis would also be good. UPDATE: Just to clarify - the question isn't asking why there is spousal support/maintenance in general. It's asking very specifically, why &quot;established standard of living&quot; is the criterion used to decide the amount. In other words, if a spouse is used to a billionaire lifestyle, why is the support aimed at perpetuating that same expensive lifestyle, as opposed to being a modest livable amount (say, mode or median or average wage).
A brief explanation follows. The Code of Hammurabi articulates the first form of alimony: If a man wish to separate from a woman who has borne him children, or from his wife who has borne him children: then he shall give that wife her dowry, and a part of the usufruct of field, garden, and property, so that she can rear her children. When she has brought up her children, a portion of all that is given to the children, equal as that of one son, shall be given to her. She may then marry the man of her heart In the Middle Ages, English ecclesiastical law mandated that a husband still has an obligation to support his wife even when they are separated (recall that divorce was not possible). This carried over to the US. As discussed in this article, there was a view (articulated in Bradwell v. Illinois by Justice Bradley that &quot;Man is, or should be, woman's protector and defender .... The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator&quot;. The basic rationale at the time was that the wife had a right to support as a consequence of the marriage, and would continue to exercise that right were it not for the conduct of the husband (by law, someone was at fault, and if it was the husband, he would have to compensate his wife). When no-fault divorce became a possibility in the late 60's, concepts of alimony were re-worked, so that alimony was no (usually) longer a permanent property right, and in its place there developed a desideratum of &quot;maintenance&quot; allowing the spouse with lesser economic power to maintain a diminishing property right. See this 1973 version of Washington's replacement-for-alimony law, which includes &quot;The standard of living established during the marriage&quot; as the law now does. Because this is established by state law in the US, and state legislatures aren't infamous about keeping close track of legislative debates, I don't think there are any surviving records of the rationale of the author of these bills. In fact, this law was drafted a few years earlier by The Uniform Law Commission – there may be some record of their discussion. [This article][5], written after the law was passed, takes note of the history of contractual concepts being applied to marriage (e.g. the territorial legislature enacted a measure that &quot;marriage is declared to be a civil contract&quot;), from which perspective one expects there to be compensation for breach of contract.
Whether or not the estate has an obligation to pay the mortgage is really dependent on the terms of the estate plan and the solvency of the estate. The fact that someone is on the deed to a property (whether a deed of gift or a transfer on death instrument) that automatically passes upon death of the original owner to a relative has little or nothing, really, to do with the estate plan. While it may have been part of the person's ultimate plan for the disposal of their assets in life and at death, that is different than being part of the actual estate plan, which deals with the disposition of assets upon death, setting out the wishes of the deceased as it pertains to all property. There are lots of people who end up in this position, even though the original person on the deed did not intend to purchase or leave the other any property. It happens a lot when say a child does not have adequate credit to secure a mortgage to buy a home, but has the money to pay a mortgage. So, in that scenario usually a parent or grandparent will put the mortgage in their name (the other will live there and pay the mortgage) and then in the event the "helper" dies, they have it pass to the other at death, either thru a "TOD" or a "joint tenancy", so that in the event they die intestate, or if the will is challenged, there will be no question who owns the house...the equity in it, anyway. It (the instrument) is its own separate entity, not subject to the will except to the extent the deceased makes it subject (I'm getting to that part). Like a life insurance policy, that pays on death but is not subject to any terms of the will, it can stand alone since deed is its own instrument, separate from any wills or trusts. Under federal law, the mortgage must be allowed to remain in effect without changes when it passes from one person to another because of a death. This negates any due-on-sale clause in the mortgage. Who pays for the remainder of what is owed, however, generally depends on the deceased's will. The will might stipulate, for example, that the heir receive the home, free and clear, with the estate to pay all monies due. In this case, the executor will either use liquid assets, or sell other non-liquid assets in the estate to pay off the mortgage. Other times, it will say that the heir get the equity, plus X amount of dollars, which the heir can put toward the home's mortgage or not. If the will is silent on the issue, it is the responsibility of the heir/person to whom the property transfers (they needn't even be an heir) to pay the mortgage upon its normal term due, or sell the property to satisfy the debt. In the event the property is worth less than the remaining mortgage, the bank will usually take the house in "deed in lieu of foreclosure" rather than seek overage from the estate.
Education level is not an FHA protected category. However, whenever you give one broad group preferential treatment over another, you'll raise eyebrows. Someone might argue, for example, that while your incentive does not explicitly mention a protected category like race or sex, it might disproportionately impact one group in a protected category over another. In fact, the Supreme Court in 2015 addressed this question in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. They found (albeit by a 5-4 vote) that disparate impact could, under certain circumstances, be the basis for a discrimination claim under FHA. The Wikipedia article on this subject is informative. As for your case, it really depends on what you are trying to accomplish with the policy, and what you reasonably predict it will do. For example, given that in most areas, white people more often have graduate degrees than black people, then if this policy did in fact end up advantaging white tenant over black tenants, someone might claim that you are in effect discriminating on the basis of race. I would not want to be on the defending end of that claim. In general, if you want to be safe from FHA's wrath, you need to evaluate each applicant on their individual merits as a tenant, not their membership in some group. Whenever you treat one person differently from another person, you should have a reason that clearly derives from your business interests as a landlord, and you should write it down. Legal questions aside, it seems like a really bad idea to offer incentives like this. I can't imagine it achieving any legitimate business goal, and I can easily imagine it making tenants or applicants feel cheated and devalued. And when people feel cheated and devalued, even if they haven't legally been wronged, they often seek legal redress. Or slash your tires. The fact that grad degrees would not be required under your policy isn't relevant. In the eyes of the FHA, any disparate treatment on the basis of a protected category is discrimination. The only real question here is whether this is disparate treatment on the basis of a protected category.
You are talking about "joint tenancy." I am familiar with bank accounts having multiple owners characterized as "Joint tenants with rights of survivorship" (JTWROS). This keeps the account out of probate: a death certificate simply removes the name of any owner who dies. But a probate court afraid that a deceased may not have enough assets to satisfy debts can still freeze the account for the duration of probate. These really are not tools for estate planning. For example, you can't use them to avoid gift or estate taxes. Also a JTWROS account is fully exposed to the liability/creditors of every owner. So no, a JTWROS does not shield assets from creditors. Finally, encumbrance of or distribution from a JTWROS account requires the consent of every owner. Any unresolved disputes are probably headed to court.
canada Courts have generally recognized that there is no &quot;checklist.&quot; Courts will look at a multitude of indicators &quot;of the sorts of behaviour that society, at any given point in time, associates with a marital relationship&quot; (Weber v. Leclerc, 2015 BCCA 492). [The indicators] include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. (M. v. H., [1999] 2 S.C.R. 3 at para. 59.) Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property - in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important - for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together - others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children - others do not. It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist. (Yakiwchuk v. Oaks, 2003 SKQB 124).
The solicitor is allowed not to accept a case. If your ex-wife asked him to prepare papers, and he feels that she is getting ripped off, it is absolutely understandable that he won't prepare these papers for her, because he doesn't want to be sued or badmouthed when the deal goes wrong. "We would also reserve the right to take our own professional advice as to our efforts on your behalf." means simply he is not specialised in some subject, and will prefer to ask someone who is. Like a medical doctor asking for a second opinion before going ahead and cutting your leg off. Now I would have preferred if the solicitor had said concretely what exactly is wrong with the contract. Also, it would be obvious that you would be very comfortable with anything that he would advice her against. If he thinks that it is a good deal for you but not for her, he should advice against it. (Your comment to another question seems to indicate that she should be paid a lot more than you offered, so her solicitor seems to have been perfectly right).
In practice this is rarely done in the US. There have been cases of employment contracts with automatic increases tied to the CPI (Consumer Price Index) or some other measure of inflation -- I believe at one time a number of union contracts specified this. Employer and employee could certainly agree on any such formula. But in the absence of any explicit provision for such a link, and an agreed formula for the resulting salary, I think a stated salary would be interpreted as a fixed sum, not subject to change until an explicit change is made. Fixed wages are the almost invariable custom, and in the absence of any explicit provision for an automatic inflationary change, I think a court would assume a fixed amount, if it came to a court case.
It depends. An agreement of the type you describe is called a post-nuptial agreement or marital agreement. These agreements are not prohibited, but are subject to heightened scrutiny. In determining if it is valid, courts consider financial disclosure, an opportunity to consult a lawyer, and a voluntary non-coerced agreement in writing, as well as a requirement that it not be unconscionable when signed or when enforced. Strictly speaking, while alimony can be eliminated in this manner and divorce attorneys' fees and property settlements can be managed in this manner, child support cannot be eliminated in this manner, although some agreement as to what constitutes payment in kind of a child support obligation that is currently existing can be reached. Modification of child support requires court approval since the child's rights are implicated and the child is not competent to agree. In the circumstances you describe, I do not think that any of the agreement would be upheld as it would likely be found to be flawed both substantively and in the process by which it was agreed. This is particularly true because New Jersey is quite hostile to post-nuptial agreements relative to most states and generally only permits them when there is evidence that the marriage was nearly moribund or the agreement was entered into in connection with a reconciliation. In general, some of the considerations that apply in New Jersey are that: If the agreement was oral and enforcement is sought of a promise to convey real estate, there must also be compliance with the statute of frauds. The court may have to resolve disputes over the terms of the agreement. The court must consider whether the circumstances under which the agreement was entered into were fair to the party charged. The terms of the agreement must have been conscionable when the agreement was made. The party seeking enforcement must have acted in good faith. Changed circumstances must not have rendered literal enforcement inequitable. This approach remains good law in New Jersey and has been enforced in a manner that is quite skeptical of these agreements. See, e.g., Kriss v. Kriss, A-3255-15T3, 2018 WL 1145753 (N.J. Super. App. Div. Mar. 5, 2018). Many others states are more inclined to uphold such agreements.