Divorce, Separation and the Distribution of Property

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The book discusses existing legal regulations and rules in various states relating to the enforcement of premarital or postnuptial agreements regarding the parties’ rights if they divorce.
“A single-volume text that could replace most of the others.... Provides an invaluable education for new and experienced lawyers alike.” —Family Advocate

Divorce, Separation and the Distribution of Property has, as its primary focus, the difference between those states that allow divorce courts to divide all property owned by either party at divorce and those that permit the division only of property accumulated during marriage by spousal effort.

The book discusses existing rules in the various states relating to the enforcement of premarital or postnuptial agreements regarding the parties rights if they divorce, including the generally accepted requirements that such agreements be voluntarily signed after sufficient financial information has been exchanged.

The book addresses in great detail how divorce courts deal with pension rights when an employee is married for a portion of his or her career, including the difference in treatment of defined benefit plans and defined contribution plans.

Additional sections included in Divorce, Separation and the Distribution of Property include: (1) what happens if a person starts a business before marriage and devotes substantial effort to that business during marriage; (2) the extent to which the value of a business created during marriage should include a component for its goodwill; (3) treatment of a residence purchased before marriage by one spouse where marital funds are used during marriage to make loan payments or improvements to the home; (4) whether property changes from separate to marital as a result of taking title jointly or by joint use of the property during marriage; (5) how divorce courts handle various employment benefits other than pensions such as stock options, bonuses, vacation and sick leave, and severance benefits; (6) the impact on a divorce property settlement if a spouse obtains a professional degree or license during marriage; (7) the treatment of federal benefits at divorce, such as Social Security benefits or military retirement benefits; (8) how divorce courts deal with recoveries for personal injuries, workers compensation awards, disability payments, or payments from a trust; (9) the impact upon a divorce property settlement if a spouse devotes time during marriage to creation of a book, invention, or other novel property that may result after divorce in an intellectual property right such as a patent or copyright; and (10) principles of jurisdiction relevant to divorce and the division of the marital estate, including the recognition of foreign divorces.

Book #00604; looseleaf, one volume, 888 pages; published in 1987, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-043-2

Additional Information
Division Name Law Journal Press
Volumes 1
Product Types Books
Brand Law Journal Press
Jurisdiction National
ISBN 978-1-58852-043-2
Page Count 888
Edition 0
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You're reviewing:Divorce, Separation and the Distribution of Property
J. Thomas Oldham
J. Thomas Oldham, a graduate of Denison University in Granville, Ohio and of the UCLA Law School, is a professor at the University of Houston Law Center.An active family law practitioner, Professor Oldham is a member of the Texas, California, and District of Columbia Bars.  He also serves on the Executive Committee of the ABA Family Law Sections Marital Property Committee and on the editorial board of the Family Law Quarterly.
Disputes Between Unmarried People

§ 1.01 Introduction
§ 1.02 Disputes Between Cohabitants
[1] The Traditional View
[2] Severability
[3] Selective Illegality
[4] The Rejection of the Illegality Rule
[5] Continued Acceptance of the Illegality Rule in Some States
[6] Theories of Recovery in Cohabitants’ Disputes
[7] De Facto Marriage
[8] Consideration by a Divorce Court of Property Accumulated During Premarital Cohabitation
[9] Non-Property Cohabitation Contract Provisions
[10] Cohabitants Treated as Spouses in Certain Instances
[11] Cohabitants Who Purchase Property Jointly
[12] Other Public Policy Issues
[13] Choice of Law
[14] Other Matters
§ 1.03 Dating Claims
[1] In General
[2] Claims Regarding Child Support
§ 1.04 Tort Actions Between the Parties
§ 1.05 Actions Between Persons Who Were Engaged to Be Married
[1] Breach of Promise of Marriage
[2] Return of Engagement Gifts

Requirements of a Valid Marriage

§ 2.01 Introduction
§ 2.02 Marriage Restrictions
[1] Monogamy
[2] Kinship
[3] Age
[4] Mental Incompetence
[5] Duress
[6] Fraud
[7] Marriage in Jest
[8] Impotence
[9] The Distinction Between a Void and a Voidable Marriage
§ 2.03 Establishing a Valid Marriage
[1] Ceremonial Marriage
[2] Common Law Marriage
[3] Proxy Marriage
[4] Putative Marriage

Rules Governing Property Division at Divorce: A General Survey

§ 3.01 Introduction
§ 3.02 The Title System
[1] In General
[2] Dissatisfaction with the Title System
§ 3.03 Equitable Distribution Systems
[1] In General
[2] Kitchen Sink System
[3] Marital Property System
[4] Hybrid System
[5] Community Property System
[6] Importance of Characterization of Property
[7] The Equitable Distribution Process

Marital Agreements

§ 4.01 Introduction
§ 4.02 The Traditional Rule of Non-enforceability
§ 4.03 Modern Enforceability: Generally Accepted Equitable Limits
[1] Written Agreement
[2] Fraud
[3] Disclosure
[4] Voluntary Execution
[5] Independent Counsel
[6] Agreement Cannot Encourage Divorce
[7] Consideration
[8] General Contract Rules
[9] Altering Fundamental Elements of Marriage 4-24
[10] Reading and Understanding the Agreement
[11] The Relevance of Marital Fault
[12] Modifying the Contract
[13] The Contract Must Clearly Apply to Divorce
§ 4.03A Points of Disagreement and Other Concerns
[1] Contracts Limiting Alimony
[2] Unfair Property Division Contracts
[3] Retroactive Application of the Modern Approach
[4] Effectiveness of Waivers in Marriage Contracts Regarding Subsequently Enacted Equitable Distribution Statutes
§ 4.04 Spouse Buying
§ 4.05 Formal Requirements Applicable in Some States
[1] Recordation or Acknowledgment
[2] Witnesses
§ 4.06 Distinguishing Between Premarital

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