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[answered] ACC 330 Name: Fact Pattern Facts Ben and Mary were married


state the pertinent facts made an impact on your delegation?

state the question that you believe been asked?

state the IRC & regulations section, rulings and case that you think as dispositive?



ACC 330 Name: Fact Pattern Facts

 

Ben and Mary were married 7 years ago, and lived together for 4 years before that. Ben is 45

 

years of age. Mary is 42 years of age. They have a 5-year-old son named James. In November

 

2015, the parties separated informally (without court involvement). When they separated, they

 

moved out of the marital home located in Manchester. As a result of a drop in real estate values,

 

the home is valued at about $275,000, and they owe about the same amount. They each now

 

rent their own apartment in the Manchester area. They have had an informal parenting

 

agreement since November 2015. James is with his mother on Monday and Tuesday, and with his

 

father on Wednesday and Thursday. They share the weekends as agreed. The parties have

 

expressed a preference for maintaining the status quo with regard to James. Ben has a high

 

school education and is a couple of credits short of an Associate?s degree in business. He works

 

for a home security company and has historically made about $50,000/year. Mary has a

 

Bachelor?s degree in psychology and a masters in counseling. Up until recently, she worked fulltime as a counselor/therapist, and historically made about $40,000/year. For the last two years,

 

she has worked part-time and is about a year away from becoming a registered nurse (RN). Ben

 

has a 401(k) through work with a current value of about $80,000. He also has a pension through

 

a previous employer which he earned before the marriage. Mary has a 403(b) that's worth about

 

$50,000. Mary's mother died in February 2011, and Mary inherited about $30,000.

 

Analysis

 

New Hampshire courts typically do not consider a period of cohabitation prior to a marriage. In

 

other words, a period of cohabitation will not be seen as extending the length of a marriage. This

 

is significant because in a long-term marriage, typically 10 years or more, the courts will be

 

inclined to split assets and debts 50/50. In a short-term marriage, typically 5 years or fewer, the

 

courts will be more inclined to place the parties in the same position they were prior to the

 

marriage.

 

In this case, it will be difficult to predict how the court will view this marriage. It's not quite longterm, but it is not truly short term either. Ben's pension, earned prior to the marriage, will be

 

awarded to him. Mary would have been entitled to 50% of anything that accrued in Ben's pension

 

during the marriage. But, in this case, it all accrued prior to the marriage. However, the 401(k) and 403(b) will be treated differently. These accounts are part of the marital estate, and subject

 

to division, regardless of when they accrued. However, the Court may not be inclined to split

 

those 50/50 in this case, due to the relatively short-term nature of the marriage. To the extent

 

there is any equity in the marital home, the court will probably order a sale with proceeds and/or

 

short-fall split. Or, since Ben and Mary remain creditworthy, one or the other could buy the

 

other's interest out, removing the other's name from the deed and mortgage. Mary's $30,000

 

inheritance will probably be awarded to her. Although it is part of the marital estate and subject

 

to division, the fact she received it after the parties informal separation and so recently before

 

the divorce, will usually result in the court awarding all or most to Mary. In addition, Ben's 401(k)

 

is worth about $30,000 more than Mary's 403(b), and this will be an additional factor the court

 

would consider in awarding all of the $30,000 to Mary.

 

Neither of the parties has claimed any fault as the reason for their divorce - no adultery, cruelty,

 

abandonment, etc. alleged. Their divorce is no fault - irreconcilable differences. As such, the

 

possibility of an unequal distribution of assets and/or debts based on fault is not an issue in this

 

case.

 

Alimony is based on one party's need and the other's ability to pay. Consequently, the court will

 

probably not order alimony in this case. Although Ben has historically earned more than Mary,

 

she has substantially more education than Ben, and will probably be earning more than Ben very

 

soon when she gets a job as a nurse. Ben is also pursuing additional education to increase his

 

earning potential. The bottom line is because both parties are relatively financially independent,

 

alimony is not likely to be an issue. And this is especially true given the parties desire to maintain

 

the shared parenting arrangement that has been in place for some time.

 

With regard to parenting (custody), there is a presumption that joint decision-making (legal

 

custody) will be awarded unless there is a real concern with one of the parents - drug abuse,

 

mental health issues, etc. In this case, there are no such concerns. The parties will be awarded

 

joint decision-making authority which will allow them to continue having input into the major

 

decisions in the child's life, for example - what religion, if any, the child practices, whether the

 

child has some sort of elective surgery, etc. Decision-making authority will allow each parent

 

equal access to the child's medical and school records, etc. In addition to decision-making, the

 

parties and/or the court will have to decide which parent has residential responsibility (formerly

 

referred to as custody). If one parent or the other is awarded primary residential responsibility,

 

the other parent will most likely pay child support to the parent with primary residential responsibility (obligee). The parent paying child support (obligor) would have parenting time with

 

his or her kids (formerly referred to as visitation). The amount of child support is based on a

 

formula. But as a general rule of thumb, it works out to be about 25%-45% of the obligor's

 

monthly income. The parties could agree to, or the court could order, shared residential

 

responsibility - where the parties have the child 50% of the time, or close to it. If such were the

 

case, there is a good chance the court would not order child support, especially if one of the

 

statutory factors existed for non-payment of child support. In this case, although the informal

 

(50/50) schedule the parties have had is not legally binding, as a practical matter, the court will

 

not be inclined to disrupt the schedule if it is working, the parties agree, and especially if it is in

 

James' best interest.

 

Summary

 

Because the parties have agreed to a shared parenting arrangement, and because they are on

 

relatively equal financial footing, this case will most likely be resolved by agreement - an

 

uncontested divorce - usually taking no more than 60 days from start to finish and costing as

 

little as $1500, including the filing fee. If the parties did not agree on parenting, had disparate

 

incomes, and/or assets, etc., the case may have been contested, taking years and costing

 

thousands and thousands of dollars to resolve.

 

Post-Divorce

 

Three years after Ben and Mary divorce, Ben loses his job with the home security company. He

 

works part-time from home as a telemarketer and has very flexible hours. Mary has gone on to

 

earn a Master?s degree in nursing and is now a nurse practitioner, making about $90,000/year.

 

Because Ben's schedule is flexible, and because Mary's job is so much more demanding, James

 

has been spending more time with Ben. Ben is primarily responsible for getting James to school

 

and extracurricular activities, packing his lunch, and getting him to doctor?s appointments, etc.

 

The parties agree that shared parenting is no longer possible. Ben files a motion to reopen the

 

divorce. He modifies the parenting plan and is awarded primary residential responsibility. Mary

 

pays Ben child support. Because the law does not allow it, Ben cannot change the property

 

settlement. But because it has not yet been 5 years since the parties divorce, Ben files a motion

 

for an award of alimony because there has been such a substantial change of financial

 

circumstances which were not anticipated.

 


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