GROUNDS FOR DIVORCE

When an individual files for divorce in the State of Maine, he or she must state the problems leading to the dissolution of the marriage. There are eight "grounds" for divorce in Maine. However, in recent years more states, including Maine, have allowed a party to obtain a divorce even though no party is at fault for the problems in the marriage. This is called a "no fault" divorce and the party filing the Complaint for Divorce need only allege that there are irreconcilable differences in the marriage.

FILING FOR DIVORCE

Maine law requires, however, that before a person files for a divorce they must have resided in good faith in the State of Maine for six months prior to the commencement of the action. The Plaintiff can always file a divorce action in Maine if his or her spouse resides in the State. One unique aspect of Maine law is the fact that with the service of a Complaint for Divorce, a preliminary injunction automatically issues, enjoining either party from 1) transferring assets, except in the usual course of business or for the necessities of life, without written consent of the other party or permission of the Court, (2) restraining the personal liberty of the other party or child; or (3) voluntarily removing the other party or a child from health insurance coverage. See Title 19-A M.R.S.A. Section 903.

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CASE MANAGEMENT CONFERENCE

Maine law has developed an intermediate system of case management to handle most interim issues and final orders that deal solely with child support. Previously known as the Case Management System (with the Court officers known as Case Management Officers or “CMO”), under revised Maine law the CMOs are now known as Magistrates, although their powers remain basically the same. A Case Management Conference is typically scheduled fairly soon after the commencement of the case and the Magistrates guide the case through the Court system insuring the timely progress of the case.

A Magistrate is empowered to make any decision with regards to child support. In addition, unless specifically waived by either party, the Magistrate may make interim temporary orders addressing which spouse will have the use of the marital home, responsibility for marital bills and debts, temporary support and alimony, temporary parental rights and responsibilities for children under the age of 18, and responsibility for interim attorneys’ fees.

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MEDIATION

Maine law requires mandatory mediation between the parties prior to any contested hearing, either pending or post divorce, on any issue if there are a minor child or children of the parties. See Title 19-A M.R.S.A. Section 261.

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MARITAL PROPERTY

At the final hearing on the Complaint for Divorce, the Court is required to set apart to each spouse his or her separate, non marital property and to divide the marital property in such a manner as the Court deems just and equitable. This means that Maine is an "equitable distribution" state. This also requires the Court to distinguish marital property from non marital property. Under Maine law, "marital property" means all property acquired by either spouse after the marriage except
1) property acquired by gift, bequest, devise or descent; 2) property acquired in exchange for property acquired by gift, bequest, devise or descent; 3) property acquired by a spouse after a decree of legal separation; 4)property excluded by valid agreement of the parties; or 5) the increase in value of property acquired prior to the marriage.

Thus, Maine law presumes that all property is marital unless one party proves that a particular item of property is non marital. A particular item of property may have both martial and non marital components. In that event, the Court must set aside to the prevailing party that portion which is non marital and equitably divide the marital component of the property.

Over the past several years, the Maine Supreme Judicial Court, also known as the Law Court, which reviews the decisions of the lower courts, developed several rules as aids in distinguishing non marital and marital property. In 1997, the Court issued a decision in Long v. Long, 1997 ME 171, that reversed previous decisions apportioning jointly held real estate into marital and non marital estates as a result of alleged non marital contributions to the acquisition of the real estate. Thus, with regards to real estate, the current law is that if real estate is held in joint ownership, it is marital property regardless of any non marital contribution to its acquisition. Because Maine is an equitable distribution state, parties can still argue for a larger portion of the real estate because of a non marital contribution. However, there is no longer an issue with regards to the characterization of the property as marital or non marital.

Because Long specifically addresses real estate, there may still exist arguments with regards to the characterization of property other than real estate. In fact, in the 2001 Chamberlain case (2001 ME 167), the Court held that “in contrast to our holding in Long, we have never held that deposit accounts are subject to such automatic treatment as marital assets when funds are placed briefly in accounts, and we decline to do so now.” Thus, the previous definitions created by the Law Court may still be applicable in those situations, although it would be the exception rather than the rule. These previous definitions include:
1) The "inception of title" rule focuses on the state of the title to property when it is first purchased; 2) the "transmutation" rule holds that non marital property may be transformed into marital property. The transmutation rule does not apply to transfers prior to January 1, 1972, which was the effective date of the revised marital property statute; and 3) the "source of funds" rule grants to each estate an interest in proportion to marital or non marital contributions made toward the acquisition of the property.

The exception which provides that property acquired in exchange for property acquired prior to marriage or in exchange for property acquired by gift, bequeath, devise, or descent is embodied in the "source of funds" rule. Thus, in a divorce, the Trial Court does not rely on who holds legal title to property. Instead, it looks to the source of funds that were used to create the value the property now has to the parties. The marital and non marital interests in property are determined by comparing the ratio of marital and separate contributions to the acquisition of property.

Previously, a spouse claiming that a non marital asset has increased in value during the marriage and that this increase in value was marital, had the burden to prove that the asset increased in value because marital money or efforts were invested in the asset rather than simply because the inherent value of the property itself increased. Two cases, however, shifted this burden of proof: Harriman and Clum held that income, even if from a non marital asset, was marital. The individual asserting that the asset was non marital had to prove what portion of the increase in value was “passive,” thus the increase attributable to the “income” being reinvested in the asset would be marital. Legislation passed in 2000 specifically reversed the marital/non marital aspect of Harriman and Clum: To the extent that a party demonstrates that the increase in value of a spouse’s non marital stock resulted from “market forces,” the increase in value is non marital property regardless of whether the spouse or spouses played a substantial active role in managing the stock. In addition, to the extent that a party demonstrates that the increase in value of a spouse’s non marital stock resulted from reinvested income and capital gain, the increased value is non marital property unless it is also established that either or both spouses had a substantial active role during the marriage in managing, preserving or improving the property. In October of 2002, the Law Court issued a decision in Warner v. Warner which provides an excellent treatise on this, and other, financial issues in divorce.

In order for the Court to equitably divide the parties' marital property, it must consider all relevant factors, ncluding 1) the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; 2) the value of the property set apart to each spouse; and 3) the economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children. It is important to note that the Court is not allowed to consider fault in the distribution of property.

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ALIMONY

The alimony statute was revised in 2000, defining various types of spousal support, including general, transitional, reimbursement, nominal, and interim support. There is a rebuttal presumption that general spousal support may not be awarded if the parties were married for less than ten years as of the date of the filing of the action for divorce. There is also a rebuttal presumption that general support may not be awarded for a term exceeding one-half the length of the marriage if the parties were married at least ten years, but no more than twenty years. In addition, the Court, when granting, denying, or modifying spousal support, must state 1) the type of support being awarded, the method of payment, the term and limitations imposed, if the support award is not subject to future modification, and the factors relied upon the Court in arriving at its decision to award, or deny, spousal support.

The statute still identifies a number of factors the Court must consider with determining an award of alimony: 1) the length of the marriage; 2) the ability of each party to pay; 3) the age of each party; 4) the employment history and employment potential of each party; 5) the income history and income potential of each party; 6) the education and training of each party; 7) the provisions for retirement and health insurance benefits of each party; 8) the tax consequences of the division of marital property, including the tax consequences of the sale of the marital home, if applicable; 9) the health and disabilities of each party; 10) the tax consequences of an alimony award; 11) the contributions of either party as homemaker; 12) the contributions of either party to the education or earning potential of the other party; 13) economic misconduct by either party resulting in the diminution of marital property or income; 14) the standard of living of the parties during the marriage; and 15) any other factors the Court considers appropriate. Instead of alimony, the Court may order either party to pay a specific sum to the other party. It is important to note that the Court cannot expect a spouse to live on marital property set aside to him or her in the divorce. In other words, an award of alimony should be based on the factors outlined in the statute and should not be modified based on how much property the spouse received through the divorce process.

As is the case with the division of marital property, fault is not a statutory consideration when determining the appropriateness of alimony. However, the Court can consider any financial misconduct of a spouse when determining an appropriate award of alimony.

Another interesting aspect of Maine law is that the Court, at any time, may alter or amend a decree for alimony or specific sums when it appears that justice requires it, except that a Court cannot increase the alimony if the original decree prohibits an increase. In contrast, even if a settlement agreement prohibits alimony from being decreased, the Court still has power to decrease alimony under extraordinary circumstances. A non increase clause is enforceable, but a non decrease clause is not.

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CHILD CUSTODY

Maine law no longer utilizes the word "custody." What was formerly known as custody has been divided into two separate categories: Parental rights and responsibilities and residency. Although Maine Statute does not expressly require the Court to designate the division of time during which the child will be residing with either parent, the Court will often designate a primary residency for the children and the parental contact between the nonresidential parent and the children.

The Court is required, however, to determine the division of parental rights and responsibilities for the children. In making an award of parental rights and responsibilities with respect to a minor child, the Court is required to apply the standard of what is in the best interest of the child. In applying this standard, the Court must consider the following factors: 1) the age of the child; 2) the relationship of the child with the child's parents and any other persons who may significantly affect the child's welfare; 3) the preference of the child, if old enough to express a meaningful preference; 4) the duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity; 5) the stability of any proposed living arrangements for the child; 6) the motivation of the parties involved and their capacities to give the child love, affection and guidance; 7) the child's adjustment to the child's present home, school and community; 8) the capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access; 9) the capacity of each parent to cooperate or to learn to cooperate in child care; 10) methods for assisting parental cooperation and resolving disputes and each parent's willingness to use those methods; 11) the effect on the child if one parent has sole authority over the child's upbringing; 12) the existence of a history of domestic abuse between the parents; and 13) all other factors having a reasonable bearing on the physical and psychological well-being of the child.

The Court may award sole or shared parental rights and responsibilities, or may allocate parental rights and responsibilities between the parties. Under the recently passed revised statute, if a party requests shared primary residency of a child and the Court does not make that award, the Court must explain its reasoning for not doing so.

Shared parental rights and responsibilities mean that most or all aspects of a child's welfare remain the joint responsibility and right of both parents, so that both parents retain equal parental rights and responsibilities and both parents must confer and make joint decisions regarding the child's welfare. While there is no statutory presumption that the Court should order shared parental rights and responsibilities, where the parents have agreed to an award of shared parental rights and responsibilities or so agree in open Court, the Court shall make that award unless there is substantial evidence that it should not be ordered. The Court shall state in its decision the reasons for not ordering a shared parental rights and responsibilities award agreed to by the parents.

Sole parental rights and responsibilities mean that one parent is granted exclusive parental rights and responsibilities with respect to all aspects of a child's welfare, with the possible exception of the right and responsibility for support.

Allocated parental rights and responsibilities mean that responsibilities for the various aspects of a child's welfare are divided between the parents, with the parent allocated a particular responsibility having the right to control that aspect of the child's welfare. Responsibilities may be divided exclusively or proportionately. Aspects of a child's welfare for which responsibility may be divided include primary physical residence, parent-child contact, support, education, medical and dental care, religious upbringing, travel boundaries and expenses and any other aspect of parental rights and responsibilities. A parent allocated responsibility for a certain aspect of a child's welfare may be required to inform the other parent of major changes in that aspect.

The Court may award parental rights and responsibilities with respect to the child to a third person, some suitable society or institution for the care and protection of children or the Department of Human Services upon a finding that awarding parental rights and responsibilities to either or both parents will place the child in jeopardy.

It is also important to note that there is no presumption that siblings should not be separated, and that the Court may not apply a preference for one parent over the other in determining parental rights and responsibilities because of the parent's sex or the child's age or sex.

The Court also has the power to appoint a Guardian ad Litem in a disputed custody case. "Ad Litem" literally means "of the case" and the guardian is charged with investigating the situation and formulating a recommendation to the Court with regards to what is in the best interests of the child. In effect, the guardian represents the child or children in a disputed custody case, even though the guardian's duty is to the Court. In other words, the guardian is the Court's expert and is in no way representing the parents in the divorce.

The Law Court has ruled that the divorce Court can consider one parent's unsuccessful prosecution of a protection from abuse complaint against the other parent when awarding parental rights and responsibilities only if the Court finds by clear and convincing evidence both 1) that the parent willfully misused the protection process in order to gain a tactical advantage in the divorce proceeding and 2) that in the particular circumstances of the divorcing couple and their children, that willful misuse tends to show that the acting parent will, after the divorce, have a lessened ability and willingness to work with the other parent in their joint responsibility for the children. Either parent, or an agency of third person who has been granted parental rights and responsibilities with respect to a child, may always petition the Court to modify the previously determined custody arrangements. However, only a substantial change of circumstances will warrant a modification of a judgment, and the petitioning party has the burden of proving the existence of a substantial change of circumstances and that the previous order should be changed or modified.

Maine law does state that the relocation, or intended relocation, of a child who is a Maine resident to another state by a parent, when the other parent is a resident in this State and there exists an award of shared or allocated parental rights and responsibilities concerning the child, is a substantial change of circumstances, allowing the Court to review the custodial arrangements in light of the relocation.

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CHILD SUPPORT

Maine has adopted child support guidelines promulgated by the Department of Human Services. The guidelines are based on the assumption that a child is entitled to the benefit of income derived by both parents independent of the parents' divorce. There is a rebuttable presumption that the calculated amount of child support will be paid by the party not providing primary residential care. The party providing primary residential care is presumed to pay their proportionate share of the child support directly on the child or children. These guidelines were revised and updated in September of 2001.

A parent obligated to pay child support may request a deviation from the presumptive child support obligation. The criteria that may justify deviation from the support guidelines includes: 1) the non primary residential care provider is in fact providing primary residential care for more than 30% of the time on an annual basis; 2) the number of children for whom support is being determined is greater than six; 3) the interrelation of the total support obligation established under the support guidelines for child support, the division of property and any award of spousal support made in the same proceeding for which a parental support obligation is being determined; 4) the financial resources of the children; 5) the financial resources and needs of a party, including non-recurring income not included in the definition of gross income; 6) the standard of living the child or children would have enjoyed had the marital relationship continued; 7) the physical and emotional conditions of the child or children; 8) the educational needs of the child or children; 9) inflation with relation to the cost of living; l0) available income and financial contributions of the domestic associate or current spouse of each party; 11) the existence of other persons who are actually financially dependent on either party, including, but not limited to, elderly, disabled or infirm relatives, or adult children pursuing post secondary education. If the primary care provider is legally responsible for other minor children who reside in the household and if the computation of a theoretical support obligation on behalf of the primary care provider would result in a significantly greater parental support obligation on the part of the non primary care provider, that factor may be considered; 12) the tax consequences of a support award, including the substantial monetary benefit that a party may derive from any federal tax credit for child care expenses; 13) the fact that the incremental cost of health insurance premiums required to be paid by a party, notwithstanding the deduction of these premiums from gross income, exceeds 15% of that party's share of the total support obligation; 14) the fact that income at a reasonable rate of return may be imputed to non-income-producing assets with an aggregate fair market value of $10,000 or more, other than an ordinary residence or other asset from which the children derive a substantial benefit; l5) the existence of special circumstances regarding a child 12 years of age or over that, for the child's best interest, requires that the primary residential care provider continue to provide for employment-related day care; 16) an obligor party's substantial financial obligation regarding the costs of transportation of the child or children for purposes of parent and child contact (to be considered substantial, the transportation costs must exceed 15% of the yearly support obligation); and 17) a finding by the Court or hearing officer that the application of the support guidelines would be unjust, inappropriate, or not in the child's best interest.

In rare circumstances it is possible for the Court to deviate from the guidelines and order the primary caretaker to pay child support to the non primary provider when a non primary provider has the child for a significant portion of the available time.

A Maine divorce Court does not have the authority to award child support for expenses which will be incurred after the child's attainment of majority. However, parents may enter into a binding contractual agreement regarding college expenses, so long as the agreement and obligation is defined and specific. As is true with custodial arrangements, the Court may modify a child support order if necessitated by a substantial change of circumstances.

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SIGNIFICANT CASES

Jurisdiction

Corning v. Corning, 563 A.2d 379 (Me. 1989)

When husband had resided in Maine for slightly more than six months, but both parties had resided for most of their married lives in Massachusetts, the Court dismissed the husband's action relying on the fact that since the wife had not submitted herself to Maine jurisdiction it was unlikely that Maine could acquire personal jurisdiction over her for the purpose of alimony and property considerations. Even though Maine had jurisdiction over the divorce action, Massachusetts could serve as an alternative forum on all issues.

Barclay v. Eckert, 2000 ME 10

Jurisdictional questions regarding determinations of child custody are controlled both by the UCCJA (recently replaced by the UCCJEA) and by the Parental Kidnaping Prevention Act (PKPA). In the event of a conflict, the PKPA preempts the UCCJA. In the absence of a conflict, the statutes should be considered in conjunction with one another. Once Maine properly assumes jurisdiction of the custody determination, it retains jurisdiction as long as one parent continues to reside here and the children’s contact with Maine continues to be more than slight. The home state determination is only necessary when determining which state court should assume initial jurisdiction for the purpose of making child custody determinations. A court may nevertheless decline jurisdiction pursuant to the doctrine of forum non conveniens.

Shanoski v. Miller, 2001 ME 139

Neither the PKPA nor the UCCJEA prohibit Maine from declining to exercise jurisdiction on the ground of inconvenient forum. In fact, both statutory schemes contemplate a court declining to exercise jurisdiction. Neither statute supports the interpretation that a court with exclusive continuing jurisdiction must exercise jurisdiction if another court has erroneously accepted jurisdiction.

von Schack v. von Schack, 2006 ME 30

A judgment dissolving a marriage is not a property, or in rem, judgment, even if it has collateral effects on the parties’ property rights. Rather than being a property interest, marriage is a legal union resulting in a legally recognized status or relationship between the spouses.

Maine courts have jurisdiction to enter a divorce judgment without personal jurisdiction over the defendant upon compliance with 19-A M.R.S.A. Section 901(1)(A) and all other procedural requirements.

When Maine lacks personal jurisdiction over a defendant in a divorce proceeding, Maine courts must exercise their limited jurisdiction with care.

Zeolla v. Zeolla, 2006 ME 118

The court shall use the broad discretion it is granted under statute to equitably divide all the marital and non marital property, wherever that property is located. The court, having personal jurisdiction over both parties, had jurisdiction to divide all of the parties’ property.

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MAGISTRATES

Foley v. Ziegler, 2005 ME 117

A magistrate does not have authority to dispose of a final child support order when there are issues other than child support being contested.

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DISTRIBUTION OF PROPERTY

Eaton v. Eaton, 447 A.2d 829, 831 (Me. 1982), citing Boyd v. Boyd, 421 A.2d 1356, 1357-58 (1980)

The Court is not allowed to consider fault in the distribution of property on divorce.

Grishman v. Grishman, 407 A.2d 9, 12 (Me. 1979), Cushman v. Cushman, 495 A. 2d 330, 335(Me. 1985), Murray v. Murray, 529 A.2d 1366, 1368 (Me. 1987)

The Court is required to assign a specific value to all marital property for clarity for the litigants and to facilitate appellate review.

MacDonald v. MacDonald, 532 A.2d 1046 (Me. 1987)

The value of the property is determined as of the time it is to be distributed.

Sweeney v. Sweeney, 534 A.2d 1290 (Me. 1987)

A professional license or degree earned during the marriage is not marital property.

Metivier v. Metivier, 582 A.2d 971 (Me. 1990)

A court may enforce a property distribution by making adjustments to the mechanisms necessary for the distribution to occur.

Stevenson v. Stevenson, 612 A.2d 852 (Me. 1992)

The Court may determine that all of the proceeds from the sale of property is marital even if that property has both marital and nonmarital components. The Court is not compelled to accept husband's testimony that the portions of the property that were marital were conveyed by husband to husband and his wife for estate planning purposes. The Court may offset the husband's larger infusion of capital by wife's entrepreneurial leadership and management contribution.

Noyes v. Noyes, 617 A.2d 1036 (Me. 1992)

Although the increase in the value of real estate during the marriage not attributable to marital effort remains non marital property, the increase in equity resulting from mortgage payments made during the marriage is marital property absent a showing that the mortgage payments were made with non marital funds or that the parties agreed to exclude the increased equity from the marital estate.

Williams v. Williams, 645 A.2d 1118 (Me. 1994)

The party claiming a non marital interest in a marital property has the burden of proving what portion of the property is non marital and of showing how the value of non marital contributions appreciated. The fact that the party’s salary paid for the mortgage does not make the property non marital.

Smith v. Smith, 1997 ME 29, 690 A.2d 970

Failure to dissolve ownership in a closely held corporation was reversible error, since divorced spouses could not be expected to continue a business relationship that would optimize resources and profits.

Harriman v. Harriman, 710 A.2d 923 (Me. 1998)

The debts of either or both spouses define a relationship with third parties. It is not an asset to be divided. Although the court can and should allocate responsibility for payment of debt between the spouses, it cannot affect the relationship between the creditor and the spouse or spouses.

Doucette v. Washburn, 2001 ME 38

We review the divorce court’s disposition of marital property for an abuse of discretion and will overturn its decision only if there is a violation of some positive rule of law or if the division results in a plain and unmistakable injustice, so apparent that it is instantly visible without argument. A just distribution of property is not synonymous with an equal distribution.

Shaw v. Shaw, 2003 ME 153

When a court intends to exercise its discretion to reject all of a portion of a divorce-related agreement and the parties do not have reason to anticipate that the court would exercise that discretion, the court must give the parties notice of its intention and an opportunity to present additional evidence on the issue or issues.

Spooner v. Spooner, 2004 ME 69

Where one party’s formerly separate property is transferred to the marital estate, an equitable division may involve awarding that spouse a larger share of the marital property.

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TRANSMUTATION OF NONMARITAL ASSETS

Foundation cases

Tibbetts v. Tibbetts, 406 A.2d 70 (Me. 1977) - Determined that a property item can have both marital and premarital components and that the non marital interest must be transferred to the party entitled to it. Also described the "inception of title rule" as the basic principle of law, but that the "source of funds" rule is an equitable exception to it. Reversed in Long v. Long, 1997 ME 171.

Carter v. Carter, 419 A.2d 1018 (Me. 1980) - Held that a documented transfer during marriage of real estate owned prior to marriage by one spouse into joint tenancy with the other spouse raises a presumption that the donor spouse intended to transfer the property to the marital estate in accordance with the "transmutation rule."

Hall v. Hall, 462 A.2d 1179 (Me. 1983) - Held that to the extent marital money was invested in the expansion and improvement of a residency owned by the one party prior to marriage, the marital estate was entitled to reimbursement in the amount by which the use of marital assets or marital labor enhanced the value of the property.

Smith v. Smith, 472 A.2d 943 (Me. 1984) - Addressed an interspousal transfer of non marital real estate from one spouse to both as tenants-in-common. Held that Carter did not require that every inter-spousal transfer be excluded from the gift exception of Subsection 722-A(2)(A). If clear and convincing evidence is presented that the transferor spouse did not intend to transmute the property to the marital estate, the gift exception subsection may apply in which case the state of title will control.

Moulton v. Moulton, 485 A.2d 976 (Me. 1984); - Cushman v. Cushman, 495 A.2d 330 (Me. 1985) - Established that the evidentiary burden imposed upon a party seeking to overcome the marital property presumption militates in favor of the introduction of corroborative evidence to support a party's direct testimony.

MacDonald v. MacDonald, 532 A.2d 1046 (Me. 1987) - Held that the Court must set aside as non marital property the increase of value of non marital property acquired by gift after the marriage.

Dubord v. Dubord, 579 A.2d 257 (Me. 1990) - One party invested non marital funds into a jointly held and jointly titled property. The Law Court held that this transfer fell within the 722-A(2)(B) exception to the marital property rule that property in exchange for property acquired prior to marriage is non marital, so that once a party established payments from a non marital account, the statutory presumption was overcome and the party is entitled to have set aside the non marital portion of the equity.

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SUBSEQUENT CONTROLLING CASES

Long v. Long, 1997 ME 171 (Me. 1997)

Real estate held in joint ownership is marital property regardless of the source of funds utilized in its acquisition.

Chamberlain v. Chamberlain, 2001 ME 167

Wife placed inherited funds in the checking account for a short time before setting up separate investment funds and trust funds for the children. In contrast to our holding in Long, we have never held that deposit accounts are subject to such automatic treatment as marital assets when funds are placed briefly in accounts, and we decline to do so now.

Kruy v. Kruy, 2002 ME 14

In Long, we affirmed the divorce court’s exercise of its discretion in making an equal division of the property notwithstanding differences in the parties’ original contributions to the purchase of their residence. We never indicated that it would have been an abuse of discretion to have divided the property otherwise.

Warner v. Warner, 2002 ME 156

To the extent that a party demonstrates that the increase in value of a spouse’s non marital stock resulted from “market forces,” the increase in value is non marital property regardless of whether the spouse or spouses played a substantial active role in managing the stock. In addition, to the extent that a party demonstrates that the increase in value of a spouse’s non marital stock resulted from reinvested income and capital gain, the increased value is non marital property unless it is also established that either or both spouses had a substantial active role during the marriage in managing, preserving or improving the property.

Warner v. Warner, 2002 ME 156

The routine and rudimentary nature of the decision to enroll in a dividend reinvestment program does not constitute substantial or active management, particularly when there is no evidence as to the time, energy and resources expended in conjunction with the decision.

Spooner v. Spooner, 2004 ME 69

Long means that when real estate is held in joint tenancy there is a presumption that it is marital. The presumption is rebuttable but on very narrow grounds. The presumption can be rebutted only if the spouse did not intend to transfer the property to joint ownership or the spouse was induced by fraud, coercion, duress, or deception. Furthermore, the presumption can be rebutted only with clear and convincing evidence. The presumption of donative intent in Carter, Lalime, and Weeks is not applicable after Long. The presumption from Long is that the property is presumed marital.

Zeolla v. Zeolla, 2006 ME 118

The court shall use the broad discretion it is granted under statute to equitably divide all the marital and non marital property, wherever that property is located. The court, having personal jurisdiction over both parties, had jurisdiction to divide all of the parties’ property.

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PENSIONS

Bliss v. Bliss, 583 A.2d 208 (Me. 1990)

An unvested right to retirement benefits, including military retirement benefits, is a contractual right, subject to equitable distribution in divorce proceedings.

Pongonis v. Pongonis, 606 A.2d 1055 (Me. 1992)

The Court may consider wife's anticipated social security benefits in computing the deferred distribution of pension benefits of each party, despite fact that social security benefits are not transferrable or assignable. A comparison of deferred distribution values of pension is as valid a method as comparing present value in dividing marital property.

Stotler v. Wood, 687 A.2d 1996 (Me. 1996)

Entitlement to net retirement annuity benefits accrued to the date of the Divorce Judgment entitles the spouse to one half of the pension benefits existing on the date of the divorce to the exclusion of any adjustments for cost of living and without regard to the ultimate pension benefits received by Husband. Marital property that is not set apart or divided in a final divorce decree is omitted property which may be disposed of by the court as justice requires.

Greenwood v. Greenwood, 2000 ME 37 (Me. 2000)

An award equal to fifty percent of the marital component of a pension plan reflects the court’s intent to allocate fifty percent of the entire marital portion of the plan valued at the time of the distribution.

Austin v. Austin, 2000 ME 61 (Me. 2000)

Gains or losses in the account’s value subsequent to the divorce belong to the parties in proportion to their share in the fund.

Black v. Black, 2004 ME 21

Recipient of military retirement pay cannot covert his entitlement to disability pay in a manner to deprive spouse of portion of military retirement pay to which she is entitled.

Depot v. Depot, 2006 ME 25

A Maine Court may not assign a lump sum value to Social Security benefits and either transfer or offset those benefits when exercising its authority to divide marital property.

The annual amount of anticipated Social Security benefit payments a spouse is expected to receive may be a “relevant factor.” First, whether it is reasonable to expect that one or both spouses will qualify for and receive Social Security retirement benefit payments in the reasonable future; and second, whether the anticipated benefit payments are a substantial financial consideration when viewed in relation to the retirement assets and other sources of income that will be available to each spouse following the divorce.

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OTHER NONMARITAL / MARITAL CASES OF NOTE

MacDonald v. MacDonald, 532 A.2d 1046 (Me. 1987)

A spouse who contends that a nonmarital asset has increased in value during the marriage has the burden to prove that the asset increased in value because of the inherent value of the property itself rather than because of marital money or efforts invested in the asset.

Craigue v. Craique, 617 A.2d 1027 (Me. 1992)

The trial Court awarded possession of the marital home to the wife (as custodial parent of the minor children) even though it was partially the nonmarital property of the husband. The Law Court affirmed stating that the nonmarital interest of the husband did not require the award of the property to him, only the value of his nonmarital interest.

McCracken v. McCracken, 617 A.2d 1034 (Me. 1992)

During the parties' marriage, Wife's grandmother conveyed $25,000.00 lot to the parties as joint tenants in exchange for $5,500.00 of wife's nonmarital funds. The Law Court held that although the wife acquired the land in exchange for nonmarital property, taking title in joint tenancy was presumed to be a gift to the marital estate and that the wife had failed to overcome that presumption by clear and convincing evidence.

Noyes v. Noyes, 617 A.2d 1036 (Me. 1993)

The pay down of a mortgage on separate property during a marriage creates a marital property interest in the asset.

Lalime v. Lalime, 629 A2d 59 (Me. 1993)

During the marriage husband transferred property he had acquired prior to the marriage into joint ownership with his wife. Husband asserted that the sole reason for the transfer was to secure a loan on the property, thus overcoming the Carter presumption. The Law Court held that husband's explanation does not rebut the presumption of gift, but only explains why the gift was made. The presumption of a gift to the marriage may only be overcome by clear and convincing evidence that the transferor did not intend to transfer to joint ownership, or was induced by fraud, coercion, duress, or deception.

Spooner v. Spooner, 2004 ME 69

The presumption of marital property recognizes the joint enterprise of marriage and carries out the parties’ expectations. The same rule ought to apply to both real estate held in joint tenancy and asset accounts held jointly. When the parties own property in a documented form of joint ownership, such as a brokerage account, the account, with its assets, is presumed to be marital property, even though the assets were separately owned by one of the parties prior to placement in the joint acocunt. This presumption that the property is marital can be overcome if the party seeking to have the property declared nonmarital proves, by clear and convincing evidence, that it was not that party’s intent to place or transfer the assets into an account in joint ownership or that the party was induced by fraud, coercion, duress, or deception.

Warren v. Warren, 2005 ME 9

Because the dedication of time and skills to the company during the marriage increased the value of the stock, it was not error to include the appreciated stock value within the marital estate.

MODIFICATION OF PROPERTY DIVISION

St. Hilaire v. St. Hilaire, 526 A.2d 28 (Me. 1987), 543 A.2d 822 (Me. 1988)

Where husband has willfully failed to market and sell the residence, responsibility for selling the marital home can be transferred to wife and is enforcement/implementation of property settlement, not modification.

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ALIMONY

Skelton v. Skelton, 490 A.2d 1204 (Me. 1985)

Fault is not a statutory consideration when determining the appropriateness of alimony.

Henriksen v. Cameron, 622 A.2d 1135 (Me. 1985)

A spouse's action for intentional infliction of emotional distress is not barred by the doctrine of interspousal immunity or res judicata as a result of the parties' divorce judgment.

Klopp v. Klopp, 598 A.2d 462 (Me. 1991)

Payor spouse's unemployment does not require a modification of his alimony obligation because there was no reason to believe his current lack of income was permanent.

Hale v. Hale, 604 A.2d 38 (Me. 1992)

The parties cannot by agreement divest the Court from its power to decrease the amount of alimony because the alimony only specifically prohibits an increase of alimony if so provided in the decree. An anti-modification provision as to a decrease in alimony imposes upon the payor spouse a greater evidentiary burden than if there was no such provision.

Gray v. Gray, 609 A.2d 694 (Me. 1992)

The very high lifestyle of the parties during the marriage can justify an alimony award to a spouse with a significant income. Spouse can be awarded portion of marital closely held business despite spouse having made no contribution thereto on the basis of the parties' disparity of income and value of the property set apart to each spouse. Spouse's failure to cooperate in discovery requests may be a factor to consider when awarding attorney's fees.

Bonnevie v. Bonnevie, 611 A.2d 94 (Me. 1992)

It is inequitable to force a spouse to invade the spouse's marital assets to reduce her entitlement to alimony

Sherwood v. Sherwood, 622 A.2d 719 (Me. 1993)

Payor closed his place of business because of his long hours of work and inadequate income derived therefrom. The Court reduced his alimony obligation, but refused to reduce the obligation retroactive to the closing of the business. The Law Court held that the lower court may consider whether the former spouse engaged in self-help by ceasing to make payments.

Harding v. Murray, 623 A.2d 721 (Me. 1993)

The primary purpose of alimony is to provide for future needs of the divorcing spouse and to act as a substitute for the loss of support enjoyed during the marriage. Wife's right to payment did not arise until a judgment was entered and, therefore, is not a dischargeable claim in bankruptcy.

Quin v. Quinn, 641 A.2d 180 (Me. 1994)

Just prior to filing for divorce, husband had transferred property held by a jointly owned corporation to the parties’ adult children. Although the corporation was ultimately set aside to husband, the Court found that he had committed economic misconduct.

Hedrick v. Hedrick, 720 A.2d 1157 (Me. 1998)

A three year cut-off date for alimony is unreasonable where a child’s uncertain future health condition makes prediction of economic self-sufficiency impossible.

Spencer v. Spencer, 720 A.2d 1159 (Me. 1998)

A Motion to reestablish an award of spousal support cannot be entertained by a court after the date of complete termination of an outstanding award.

Lyon v. Lyon, 728 A.2d 1273 (Me. 1999)

Cohabitation alone, without a substantial change in financial circumstances, is not sufficient to justify modification. When an anti-modification agreement has been incorporated into the divorce decree, however, the party seeking modification must show more than a substantial economic change.

Largay v. Largay, 2000 ME 108 (Me. 2000)

Where time-limited alimony is provided to permit readjustment after a divorce, a party cannot expect to unilaterally achieve an extension of the alimony period by electing not to take reasonable steps to achieve the intended readjustment.

Warner v. Warner, 2002 ME 156

We have stated on several occasions that spousal support awards may not be based on speculative predictions of future economic circumstances. It is incumbent upon the party seeking an unmodifiable award of general support to provide the court with competent evidence from which a predictive judgment can be made.

Wren v. Wren, 2003 ME 29

An individual’s personal preference to pursue education or vocational training cannot, standing alone, justify a reduction in a preexisting support obligation.

Fitzpatrick v. Fitzpatrick, 2006 ME 177

Absent the parties’ agreement, courts should exercise their discretion to order non-modifiable spousal support only where it is demonstrated that there is a heightened need to achieve greater certainty in the parties’ post-divorce financial relationship.

Pettinelli v. Yost, 2007 ME 121

Although recent changes may have warranted some adjustment in the general spousal support obligation, the court abused its discretion by engaging in the kind of “reevaluation of the basis for the original spousal support award” that the substantial change in circumstances standard was meant to prevent. Post-judgment proceedings provide no invitation to reopen and re-litigate a divorce judgment or settlement agreement based on one party’s second thoughts about whether he or she negotiated a good deal in the first place.

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INSURANCE

Bryant v. Bryant, 411 A.2d 391, 394 (Me. 1980)

The Court has the power to require a spouse to maintain a life insurance policy or a health insurance policy on behalf of the other party.

Harding v. Murray, 623 A.2d 721 (Me. 1993)

The Law Court reversed trial Court's requirement that Husband maintain $250,000.00 of life insurance when the Judgment only required that one-half of that amount be for the benefit of the Wife at the time of Husband's death.

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SPOUSAL PERSONAL INJURY CLAIM

Palleschi v. Palleschi, 712 A.2d 383 (Me. 1998)

The husband subjected his wife to threats, degradation, dominance, sexual and emotional exploitation, force, and physical assaults. Evidence of abuse that occurred prior to the statutory limitations was properly admitted for the limited purpose of establishing the wife’s reasonable fear of continued violence within the statutory limitations period - fear which the court found accounted for the wife’s post-traumatic stress disorder.

McPherson v. McPherson, 712 A.2d 712 (Me. 1998)

One who knows or should know that he or she is infected with a sexually transmitted disease is under a duty to protect sexual partners from infection.

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WORKERS COMPENSATION

Cummings v. Cummings, 540 A.2d 778 (Me. 1988)

Workers compensation benefits received or weekly benefits actually accrued but not yet paid are marital property. workers compensation awards paid after the marriage has been dissolved is compensation for wages that otherwise would be earned by and paid to the injured worker after the termination of the marriage and is nonmarital.

Doucette v. Washburn, 2001 ME 38

When a permanent impairment award is awarded separately from compensation for the loss of earning capacity, the award is singular to the person suffering the loss. Because it compensated the spouse for a loss that is uniquely personal, that is, the loss of or reduced use of a part of the human body, the court did not err in determining that the permanent impairment component constituted a nonmarital asset.

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CHILD CUSTODY

Boutin v. Dionne, 458 A.2d 426 (Me. 1983); Philbrick v. Cummings, 534 A. 2d 1307 (Me. 1987).

Only a substantial change of circumstances will warrant a modification of a judgment or decree.

Osier v. Osier, 410 A.2d 1027 (Me. 1980)

The Court will balance an inquiry into the religious practices of one parent with the need to determine what is in the best interests of the child.

Gerber v. Peters, 584 A.2d 605 (Me. 1990)

There is no attorney-client relationship between the parents and the Guardian ad litem despite fact that parent is responsible for payment of the fee. The Guardian's duty is to the Court and not to the parents.

Campbell v. Campbell, 604 A.2d 33 (Me. 1992)

One parent’s unsuccessful prosecution of a protection from abuse complaint against the other is relevant only if the court finds by clear and convincing evidence both 1) that the parent willfully misused the protection process in order to gain a tactical advantage in the divorce proceeding, and 2) that in the particular circumstances of the divorcing couple and their children, that willful misuse tends to show that the acting parent will after the divorce have a lessened ability and willingness to work with the other parent in their joint responsibility for the children.

Rowland v. Kingman, 629 A.2d 613 (Me. 1993)

The Law Court rejected wife’s argument that as the primary parent, deference should be afforded her decision that it was in the children’s best interest to move to Oregon. Intended relocation of a child to another state constitutes a substantial change of circumstances and it is the court’s role to determine the best interests of the children in such circumstances.

Fraser v. Boyer, 722 A.2d 354 (Me. 1998)

Husband sought to introduce evidence regarding wife’s pre-divorce conduct to support his request to procure primary residency of his child. Wife’s move to another state triggers statutory establishment of a substantial change of circumstances. Thus, the issue for the court was what modification of the preexisting custody order was in the child’s best interest. Where the court was required, for the first time, to assign one parent a dominant relationship with the child, evidence of relatively recent pre-divorce conduct was relevant, along with all of the evidence of post-divorce conduct.

Kennedy v. State of Maine, 730 A.2d 1252 (Me. 1999)
In Maine, the guardian ad litem in custody proceedings functions as the traditional adjunct of the court and, therefore, is an employee of the State within the meaning of the Maine Torts Claim Act.

Richards. v. Thompson, 2004 ME 25

Implicit in every court order establishing parental rights and responsibilities is each parent’s duty to refrain from unreasonable interfering with the rights of the other parent.

C.E.W. v. D.E.W., 2004 ME 43

The Court may consider an award of parental rights and responsibilities to an individual determined by the Court to be a de factor parent, based upon a determination of the child’s best interest.

Jabar v. Jabar, 2006 ME 74

The Court may use qualitative factors when awarding primary residency to a parent when the non custodial parent has the children close to half the time (time with the children, involvement in school related issues and extracurricular activities, employment required to support the children while maintaining a household).

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VISITATION

Costigan v. Costigan, 418 A.2d 1144 (Me. 1980)

The Court may award reasonable rights of contact with a minor child to any third persons.

Knight v. Knight, 680 A.2d 1035 (Me. 1996)

By making future visitation contingent upon the certification of the therapist that the child is ready for visitation, it transfers the court’s responsibility for determining the best interest of the child to the therapist. Although the court can consider the expression of such an expert opinion by a therapist, the court cannot make the visitation outcome dependent upon that opinion.

In re Melanie S., 712 A.2d 1036 (Me. 1998)

An order terminating parental rights deprives the court of any authority to impose a condition that preserves contact between the parent and the child.

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GRANDPARENTS RIGHTS

Rideout v. Riendeau, 2000 ME 198 (Me. 2000)

Where the grandparents have acted as the children’s parents for significant periods of time, the Grandparents Visitation Act serves a compelling state interest in addressing the children’s relationship with the people who have cared for them as parents. Because the Act is narrowly tailored to serve that compelling interest, it may be applied in this case without violating the constitutional rights of the parents.

Conlogue v. Conlogue, 2006 ME 12

The death of one parent in itself is not an urgent reason that justifies forcing the surviving parent into litigation.

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Child Support

Baril v. Baril, 354 A.2d 392 (Me. 1976)

A Maine divorce Court does not have the authority to award child support for expenses which will be incurred after the child's attainment of majority.

Absher v. LaCombe, 432 A.2d 1241 (Me. 1981); Wood v. Wood, 407 A.2d 282 (Me. 1979); Tapman v. Tapman, 544 A. 2d 1265 (Me. 1988)

Maine Courts require a petitioner to prove, by a preponderance of the evidence, that an increase or a decrease of a support obligation is necessitated by a substantial change of circumstances.

Ault v. Pakulski, 520 A.2d 703 (Me. 1987)

Parents may enter into a binding contractual agreement regarding college expenses, so long as the agreement and obligation is defined and specific.

LeBlanc v. LeBlanc, 597 A.2d 62 (Me. 1991)

When a non-primary provider has the child for a significant portion of the available time it is possible for the Court to deviate from the guidelines and order the primary caretaker to pay child support to the non-primary provider.

Carter v. Carter, 611 A.2d 86 (Me. 1992)

The Court may assess arrearages of support in excess of six years. The six year statute of limitations as to civil actions, which are not actions on a judgment or decree, is not applicable. Since the Court cannot retroactively modify child support, each payment becomes a judgment debt as of the date due and Maine has no statute of limitations for actions on a judgment.

True v. True, 615 A.2d 252 (Me. 1992)

The Law Court held that money received by the wife through regular gifts from an elderly grandmother was not income under the guidelines because there was no legal obligation to continue making them in the future.

Tardif v. Cutchin, 617 A.2d 1032 (Me. 1992)

Post-divorce Court increased husband's child support obligation from $66.00 per week to $247.00 per week, applying the guidelines to assumed earnings because the husband had transferred commercial real estate holdings to his present wife and had otherwise acted to diminish or hide his real earnings. The Law Court affirmed holding that a modification of child support will be accorded "unusual deference" and affirmed absent a violation of some positive rule of law when it results in a plain and unmistakable injustice so apparent that it is instantly visible without argument.

Rich v. Narofsky, 624 A.2d 937 (Me. 1993)

The trial Court relieved the non-custodial mother of any child support obligation because of her negligible income. The Law Court reversed holding that the lower court was required to consider mother's part-time and summer earning capacity.

Harvey v. Robinson, 665 A.2d 215 (Me. 1995)

A parent’s good faith decision to voluntarily give up full-time employment to pursue education must be balanced with an evaluation of the long term effect that decision has on the interests of the children for whom the parent has an established duty of support.

Ouellette v. Ouellette, 687 A.2d 242 (Me. 1996)

A child’s receipt of social security benefits should be considered by the court when determining an appropriate level of child support. However, the court may only deviate from the guidelines if it finds that their application would be inequitable or unjust and it incorporates written findings in support of the deviation.

Melanson v. Belyea, 698 A.2d 492 (Me. 1997)

The courts have the authority to modify divorce judgments entered prior to January 1990 to provide support payments until a child’s 19th birthday or high school graduation, whichever occurs first.

Beck v. Beck, 733 A.2d 981 (Me. 1999)

A modification of a child support obligation can be retroactively applied only from the date notice of the petition for modification was served on the other party.

Wren v. Wren, 2003 ME 29

An individual’s personal preference to pursue education or vocational training cannot, standing alone, justify a reduction in a preexisting support obligation. A person’s earning or income potential is a product of a variety of factors, including that person’s qualifications, income history, and the earning or income opportunities that are reasonably available to that person.

Bouchard v. Frost, 2004 ME 9

If there is no evidence of waiver, bad faith, or a constitutionally impermissible purpose, sovereign immunity bars the retroactive recovery of payments made to the Department of Human Services, even if the recipient of the benefit is later determined to be ineligible.

Walker v. Walker, 2205 ME 21

The Legislature intended to include severance pay, regardless of how the payments are made, in the definition of gross income for the purposes of child support calculations.

Bonville v. Bonville, 2006 ME 3

Although it is appropriate to include an order enforcing an arrearages debt in a final judgment, an arrearages debt is not extinguished when it is not included in the final judgment.

Lawrence v. Webber, 2006 ME 36

When the parties provide substantially equal care for children, the support for the total number of children in the family is utilized. When one party provides primary residential care for a child, the total number of children in the household is utilized.

Carolan v. Bell, 2007 ME 39

The Court did not err in its treatment of employer-paid health benefits to impute income to each party. However, a parent who has a full-time job consistent with the parent’s education and experience, but who works less than a forty-hour week, is not, thereby subject to having his or her income recalculated to a forty-hour per week equivalent for child support calculation purposes.

Allen v. Allen, 2007 ME 111

The deviation from the child support guidelines agreed to in 1999 can no longer support an upward or downward deviation from the child support guidelines when the newly calculated award significantly exceeds the prior award that included the upwards deviation.

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MEDIATED AGREEMENT

Cloutier v. Cloutier, 2003 ME 4

A family matter agreement does not become an order of the court until it is presented to and approved by the court. When the court, acting within its discretion, concludes that there is a basis for setting aside an agreement that has not been incorporated in a court order, it may do so.

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APPEAL

Jarvis v. Jarvis, 2003 ME 53

A trial court’s verbatim adoption of findings or orders proposed by one party in a case is disfavored, as such an approach suggests that the court has not carefully reviewed the evidence or applied its independent judgment in making its findings and conclusions. The trial court has a duty to make findings sufficient to inform the parties of the reasoning underlying its conclusions and to provide for effective appellate review.

Fitzgerald v. Bilodeau, 2006 ME 122

An immediate appeal from a denial of a motion to dismiss for forum non conveniens under the UCCJEA is inappropriate.

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POST-JUDGEMENT INTEREST

Allen v. Allen, 603 A.2d 482 (Me. 1992)

Post-judgment interest which accrues on unpaid child support
is simple interest at the rate in effect when the payment became due.

Tarbuck v. Jaeckel, 2000 ME 105 (Me. 2000)

On petition of the nonprevailing party and on a showing of good cause, the trial court may order that interest awarded by Title 14, Section 1602-A, shall be fully or partially waived. (Footnote - Waiver of post judgment interest is the exception and not the rule).

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MARITAL AGREEMENTS

Peterson v. Leonard, 622 A.2d 87 (Me. 1993)

Parties' 1978 Divorce Judgment incorporated by reference the Settlement Agreement between the parties which required Husband to contribute to the support of the children while in college. After Husband fails to do so, the Wife brought an action to enforce the Divorce Judgment and a plenary action seeking specific performance of the Settlement Agreement as a contract. The Law Court held that absent contract language to the contrary, incorporation of the Settlement Agreement into a Divorce Judgment constitutes merger and the Agreement is no longer separately enforceable as a contract. Once the Agreement was incorporated into a Divorce Judgment, the Court has jurisdiction to enforce the obligation even though the Court could not have created the obligation to support an adult child absent the agreement of the parties.

Sargent v. Sargent, 622 A.2d 721 (Me. 1993)

Subsequent to parties’ divorce, wife sues former husband alleging that he induced her to execute the separation agreement by misrepresenting the extent of the property accumulated during the marriage. The Law Court held that fraud is an exception to the doctrine of res judicata and that the wife is not foreclosed from asserting her action.

Staples v. Staples, 2001 ME 121

Parties can agree to distribution and support which a court might not be able to order in the absence of an agreement.

ATTORNEY'S FEES

Miele v. Miele, 2003 ME 113

A party’s conduct may be taken into account in awarding attorney fees especially when costs of litigation, or other expenses related to the divorce, have been needlessly increased.

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