要嗆新婚姻法也別拿外國法律意淫(转载)

楼主:美國華人Alvin 时间:2011-11-13 22:53:00 点击:551 回复:22
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在另一個帖看見有人在嗆新婚姻法,有不同意見本來是平常,但事實是不能歪曲的。看見有人在貼文章,說外國法律如何傾向女性,讀完後就發覺與自己認識的事實不符。甚至還有人嚷著要〔全面和美國法律接軌〕,我就覺得更好笑了,同時認為應該澄清一下。
  
  以下文章都是我從美國的法律網站找到的,中文翻譯是我配上的。由於全文翻譯太費時了,我就只翻譯了重點。
  
  為免造成閱讀混亂,請讓我先把要貼的文章都貼完,大家才回應吧。謝謝!
  
  先說說訂婚戒指吧,我覺得西方人送訂婚戒指,跟中國人送彩禮的性質是差不多,可以拿來比較。
  
  Returning an Engagement Ring
    If the engagement is over, state law decides who keeps the engagement ring.
    
    The engagement is over. In addition to the sorrow, the heartbroken must deal with the question of whether the engagement ring needs to be returned--along with the deposits left with the caterer, the florist, and the dressmaker.
    
    訂婚告吹了,除了遺憾以外,還要考慮是不是要退還訂婚戒指。
    
    State courts around the nation that have considered the issue -- whether a betrothed can keep the engagement ring or must return it -- have reached different conclusions.
    
    When Is a Gift a Gift?
    Courts generally treat the engagement ring as a gift, from the donor (the person who gave the ring) to the donee (the person who received it). To be considered a legal gift, three things must be present: the donor’’s intent to give the ring as a gift, the donor’’s delivery of it to the donee, and the donee’’s acceptance of the item. If the person to whom the ring was given can show all three elements, a court will consider the ring to be a gift.
    
    法庭一般視訂婚戒指,為送禮者給受禮者的禮物。要成為法律承認的禮物,需符合三個條件:
    
    1. 送禮者有沒有將戒指當作禮物送出去的意圖
    2. 送禮者有否把禮物交給受禮者
    3. 受禮者有沒有接受該物品
    
    接受戒指者需向法庭展示全部三個要點,法庭就會視為禮物。

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楼主美國華人Alvin 时间:2011-11-13 23:06:02
  Conditional Gifts
    However, the majority of courts also consider such a gift to be a conditional one. That means that, until some future event occurs, the gift isn't final; if that event does not occur, then the donor has the right to get the gift back. In real life, many parents use this concept by, for example, giving a teenage daughter the keys to the family car, on the condition that she maintain a certain grade point average for a specified period of time. If she doesn't make the grade, the keys must be returned.
    
    然而,大部份法庭會視之為有條件的禮物,即是直至將來發生某些事情之前,這禮物仍不是最終定案。如果這些事情沒有發生,那麼送禮者就有權取回禮物。
    
    Women who want to keep their engagement rings often argue that the condition needed to make the engagement ring a final gift is simply the acceptance of the proposal of marriage, not the completion of the marriage ceremony. That way, if the engagement is broken, the ring remains her property.
    
    那些要保留訂婚戒指的女仕常常爭辯說,單是接受求婚就等於滿足訂婚戒指作為最終禮物的條件了,而不是完成婚禮。即使婚事告吹,她仍保留戒指。
    
    However, this argument often loses. The majority of courts find that the gift of an engagement ring contains an implied condition of marriage; acceptance of the proposal is not the underlying "deal." Absent some other understanding -- say, that the ring is merely a memento of a great trip to Hawaii -- most courts look at engagement rings as conditional gifts given in contemplation of marriage:
    
    單這說詞往往是失敗的,大部份法庭都認為訂婚戒指有一個隱含的條件,那就是結婚,接受求婚並不算。有些人甚至只當它為一趟愉快旅程的紀念。
    
    The Supreme Court of Montana has come down on the opposite side of this fence, rejecting the conditional gift theory and declaring that an engagement ring is an unconditional, completed gift. Ex-fiances in that western state are unlikely to get help from the courts if they want to get an engagement ring back. Albinger v. Harris, 2002 WL 1226858 (Mont. 2002).
    
    但Montana州的最高法院屬例外,它把訂婚戒指視為無條件的禮物。
  
楼主美國華人Alvin 时间:2011-11-13 23:06:54
  Fault for the Break-Up
    When divining who gets to keep the engagement ring, courts also do not agree on whether it should matter who did the breaking up or why.
    
    當決定誰該保有訂婚戒指時,法院亦不會考慮是誰提出分手,或為甚麼分手。
    
    Courts That Do Consider the Reasons for the Breakup
    To some judges, it isn't fair that the donor should always get the ring back, especially if the donee stood ready to go ahead with the marriage and the donor broke it off. These same judges think it would be unfair for the donee to keep the ring if the engagement was broken because of the donee's unfaithfulness or other wrongdoing. In such cases, they order that the ring should be returned to its purchaser. This "fault-based" rule is the majority approach.
    
    但對某些法官而言,永遠讓送禮者討回戒指也是不公平的,尤其當受禮者一方是準備了要結婚的,只是送禮者改變了主意。然而,若婚事告吹的原因是受禮者不忠或其他過失導致,讓受禮者保留戒指也是不公平的。在會考慮分手原因的法庭中,大部份都是採用這原則。
    
    For example, consider the case of George J. Pavlicic, a 75-year-old man, who had a romance with Sara Jane Mills, aged 26. They became engaged in 1949. He bought her a house, two cars, an engagement ring, and a diamond ring in anticipation of their marriage. George then lent her a significant amount of money, including $5,000 to buy a saloon. Sara Jane then disappeared. The next time she was heard from, she had indeed used the $5,000 to buy a saloon, but it was in another city, and she had married another man.
    
    George went to court. He wanted everything that he'd given Sara Jane back -- and he won. Pavlicic v. Vogtsberger, 136 A.2d 127, 130 (Penn. 1957).
楼主美國華人Alvin 时间:2011-11-13 23:07:51
  Some courts applying a fault-based rule consider the exchange of the ring to be more like a contract than a conditional gift: The ring is just a symbol of the agreement to marry. If that agreement is not performed, then those involved should be restored to their former positions -- as they would be if the contract was for, say, the delivery of a bushel of wheat -- and the ring should be returned to the person who first had it. But if the donor backs out, the donee should keep the ring, because a person who breaches contracts should not be rewarded for doing so. Spinnell v. Quigley, 785 P.2d 1149 (1990).
    
    有些採用這原則的法庭,會視戒指為一份合同而不是有條件禮物:禮物只是結婚協議的象徵,若該協議最終沒有履行,那與此有關的都要打回原形,所以戒指亦應回到原來的擁有者那裡。但若退出的事送禮者,那該讓受禮者保留戒指,因為毀約的一方不應因此受到獎勵。
    
    Courts That Don't Consider the Reasons for the Breakup
    Other judges think that the whole matter of who broke up with whom isn't any of their business. If the wedding's off, they say, the donor should get the ring back, regardless of why, where, when, or at whose behest the engagement ended. After all, they reason, no-fault divorce makes it possible for marriages to end without bitter court fights over whose fault it was; engagements should be treated the same way.
    
    其他法官則認為,誰提出分手不是他們要管的事。若婚事告吹,送禮者就應該得回戒指,不論婚事是為甚麼告吹,在哪裡,甚麼時候,因誰的緣故都不重要。
  
作者:高尚人士 时间:2011-11-13 23:08:03
  婚姻是民事契约,以平等自愿为基础。
楼主美國華人Alvin 时间:2011-11-13 23:10:35
  接下來,就是美國的〔無過失離婚〕
  
    The Issue of No-Fault Divorce
    目前美国法院处理离婚,根本不理会有没有谁犯了错(纽约州除外)
    
    The Origins of No - Fault Divorce
    In 1970, California changed the way people look at divorce and made it a lot easier to get out of a marriage by passing the second no-fault divorce law in the United States. In 1953, Oklahoma passed the countries first laws doing away with the need to find fault in divorce. It took 17 years for the rest of the country to follow suit. Some would say that we have become a progressive country when it comes to our divorce laws. Some sternly, disagree.
    The Blame Game
    Before 1970 and the move toward no-fault divorce laws getting a divorce meant proving that one spouse had done something wrong or had acted in a way that caused the breakdown of the marriage. Someone had to be at “fault,” which meant that grounds for the divorce had to be established. Such grounds might include adultery, physical or mental abuse, abandonment, confinement or holding against one’s will, insanity and the inability to be intimate with your spouse.
  
  
楼主美國華人Alvin 时间:2011-11-13 23:13:08
  The Issue of No-Fault Divorce
    無過失離婚
     
      The Origins of No - Fault Divorce
      In 1970, California changed the way people look at divorce and made it a lot easier to get out of a marriage by passing the second no-fault divorce law in the United States. In 1953, Oklahoma passed the countries first laws doing away with the need to find fault in divorce. It took 17 years for the rest of the country to follow suit. Some would say that we have become a progressive country when it comes to our divorce laws. Some sternly, disagree.
    
    加州於1970年通過無過失離婚法,讓人可以更容易地終止一段婚姻。但Oklahoma州是全國第一個通過此法律的州份,當時是1953年,於是17年後,全國都跟著改變了。有些人覺得這樣很進步,有些人卻強烈反對。
    
    
      The Blame Game
      Before 1970 and the move toward no-fault divorce laws getting a divorce meant proving that one spouse had done something wrong or had acted in a way that caused the breakdown of the marriage. Someone had to be at “fault,” which meant that grounds for the divorce had to be established. Such grounds might include adultery, physical or mental abuse, abandonment, confinement or holding against one’s will, insanity and the inability to be intimate with your spouse.
    
    在1970年之前,離婚意味著要證明配偶犯了錯,或其行為導致婚姻破裂,總得有人負上罪名。這些理由包括通姦,肉體或精神虐待,拋棄,禁錮,故意作對,發狂或無法與配偶親熱等。
楼主美國華人Alvin 时间:2011-11-13 23:15:41
  Free to Leave
      No-fault laws took away the need to find fault. No-fault divorce law gives either party the freedom to sue for divorce with only the claim of “irreconcilable differences.” Born of these laws was the concept of unilateral divorce: either partner feeling the urge to end the marriage could do so and was free to leave.
    
    無過失離婚法讓人無需尋找過失,大家都可自由提出離婚,只要告訴法庭大家已經無法再相處就可。
    
      Two Sides to Every Story
      Some believe that the high rate of divorce in the United States is a direct result of no-fault divorce laws. The debate between Religious groups and politically liberal groups has become contentious and rampant with contradictory evidence meant to support the arguments of both groups.
    
    有些人認為無過失離婚法是令美國離婚率高企的直接原因,宗教團體與自由派份子一直在激烈爭論。
    
       The Big Question:
      The question that needs to be considered by both groups is which laws, fault or no-fault will best benefit the needs of a husband, wife and the children involved in a divorce.
    
    但真正要考慮的,是哪一個選擇--無過失離婚法或過失離婚法--更能照顧夫婦與孩子的需要。
    
    Current Status
      
      New York is the only state that has not adopted strict no-fault laws. All other states have gone to no-fault divorce with some states also allowing grounds for divorce as an option. Southern states such as Tennessee, Alabama, Florida and Georgia have the most relaxed divorce laws and have the highest divorce rates in the country.
    
    紐約是唯一一個仍沒有嚴格執行無過失離婚法的州,其他都是採用無過失離婚法,當中有一些仍容許人選擇提出離婚理由。
楼主美國華人Alvin 时间:2011-11-13 23:16:50
  A few states, Louisiana, Arkansas and Arizona have passed laws that give couples the option to choose, before they marry, which laws they would want to apply to their divorce should the marriage end. They can choose between “covenant marriage” or the no-fault option. In covenant marriage, couples agree to pre-marital counseling and to limit the grounds and options should they decide to divorce.
    
    有幾個州(Louisiana, Arkansas and Arizona)則容許夫婦在結婚前先決定,日後若離婚將採用哪一套離婚法。
      
      Although statistics seem to point to an increase in divorce since the beginning of no-fault laws, it would seem that the laws are popular with the general public. In Louisiana, nearly 97% of couples are choosing to go the no-fault route.
    
    需然通過無過失離婚法後,離婚率是上升了,但看來是受到大眾歡迎的,在Louisiana州,97%的夫婦都選擇這個。
    
    Background
      
      No-fault laws are the result of divorce lawyers and Family Court Judges trying to change the way divorces played out in court. They were tired of dealing with feuding couples who were resorting to facts being distorted, lies being told and time being spent trying to figure out who had done what to who. In their minds, the old fault system of divorce was a threat to the integrity of the Family Court System and changes needed to be made.
    
    通過無過失離婚法,是因為律師和法官都厭倦了夫婦在庭上爭執,歪曲事實,說謊,及浪費時間去研究到底誰對誰做了甚麼。他們認為必需要作出改變。
楼主美國華人Alvin 时间:2011-11-13 23:17:44
  A few states, Louisiana, Arkansas and Arizona have passed laws that give couples the option to choose, before they marry, which laws they would want to apply to their divorce should the marriage end. They can choose between “covenant marriage” or the no-fault option. In covenant marriage, couples agree to pre-marital counseling and to limit the grounds and options should they decide to divorce.
    
    有幾個州(Louisiana, Arkansas and Arizona)則容許夫婦在結婚前先決定,日後若離婚將採用哪一套離婚法。
      
      Although statistics seem to point to an increase in divorce since the beginning of no-fault laws, it would seem that the laws are popular with the general public. In Louisiana, nearly 97% of couples are choosing to go the no-fault route.
    
    需然通過無過失離婚法後,離婚率是上升了,但看來是受到大眾歡迎的,在Louisiana州,97%的夫婦都選擇這個。
    
    Background
      
      No-fault laws are the result of divorce lawyers and Family Court Judges trying to change the way divorces played out in court. They were tired of dealing with feuding couples who were resorting to facts being distorted, lies being told and time being spent trying to figure out who had done what to who. In their minds, the old fault system of divorce was a threat to the integrity of the Family Court System and changes needed to be made.
    
    通過無過失離婚法,是因為律師和法官都厭倦了夫婦在庭上爭執,歪曲事實,說謊,及浪費時間去研究到底誰對誰做了甚麼。他們認為必需要作出改變
楼主美國華人Alvin 时间:2011-11-13 23:18:39
  A few states, Louisiana, Arkansas and Arizona have passed laws that give couples the option to choose, before they marry, which laws they would want to apply to their divorce should the marriage end. They can choose between “covenant marriage” or the no-fault option. In covenant marriage, couples agree to pre-marital counseling and to limit the grounds and options should they decide to divorce.
    
    有幾個州(Louisiana, Arkansas and Arizona)則容許夫婦在結婚前先決定,日後若離婚將採用哪一套離婚法。
      
      Although statistics seem to point to an increase in divorce since the beginning of no-fault laws, it would seem that the laws are popular with the general public. In Louisiana, nearly 97% of couples are choosing to go the no-fault route.
    
    
      
      As early as the 1930s, a treatise on American Family Court Law had complained:
      
       “In divorce litigation it is well known that parties often seek to evade statutory limitations and thus there is great danger of perjury, collusion and fraud. In many cases no defense is interposed, and often when the case is contested the content is not waged with vigor or good faith.”
      
      The true pioneer of no-fault divorce is the state of California because of the Family Law Act of 1969. The act was signed by Governor Ronald Reagan and took effect on January 1, 1970. By 1983, every state but New York and North Dakota had passed their own forms of no-fault divorce laws.
  
楼主美國華人Alvin 时间:2011-11-13 23:22:05
  Pros
    支持理由
      
      •States that adopted no-fault laws saw a decline in the rates of domestic violence.
    採用無過失離婚法的州份,家庭暴力的數字下降了。
      
      •These laws empower a man or woman in an abusive marriage and make it easier to leave.
    此法讓受虐的一方更容易脫離困境。
      
      •Means less conflict during divorce, which means less emotional harm to children whose parents, are divorcing.
    減少離婚時的衝突,這意味減少對兒童的傷害。
      
      •Helps reduce the heavy caseloads of family courts.
    減輕家事法庭的工作負擔。
      
      •Shortens the length of time it takes to obtain a divorce, which, in turn, shortens the amount of time spent in a stressful situation.
    縮短離婚過程,等於減輕壓力。
      
      •Divorce settlements are based on need, ability to pay and contribution to the family finances, rather than on fault.
    離婚時的財產分配,從此不再基於過失,而是基於兩人的需要,支付能力及兩人對家庭財政的貢獻。
  
  
楼主美國華人Alvin 时间:2011-11-13 23:23:46
  Cons
    反對理由
      
      •Over 80% of no-fault divorces are unilateral. This means that one party to the divorce objects to the marriage ending and no-fault laws take away that parties control over whether or not they can save their marriage.
    超過80%的無過失離婚都是單方面提出的,另一方即使想挽救婚婚,機會都被奪去了。
      
      •Has given more power to Family Court Judges in deciding issues such as custody, splitting marital assets and spousal support. When there is no one at fault, a judge’s decisions are based on his feelings and feelings are not always objective.
    法官在決定撫養權,財產分配和贍養費時有更大權力,然而法官的個人感覺並非永遠客觀。
      
      •Takes away a father’s rights to his children because they have no defense against a wife who wants to leave the marriage. Courts favor mothers and under the no-fault system it is hard to prove a mother unfit to parent.
    當要求離婚是女方,那就會奪走父親對孩子的撫養權,因為法庭通常傾向女方,無過失離婚法令人難以舉證女方不是稱職的母親。
      
      •The idea that marriage is a covenant larger than the two people who make it has been lost. Marriage vows and the promise made to each other during those vows have lost their value. This is evident in the high divorce rate in the United States.
    婚姻作為神聖公約的意義失去了,結婚時的山盟海誓也變得沒有價值。  
    
      •Lowers a dependent wife’s living standards because she no longer has grounds to argue in her defense. Her husband can choose to leave her and 75% of the time the courts will not enforce any spousal support. Since the mother gets custody more often than the father this also means a lower standard of living for the children.
    作為受養人的妻子的生活水準下降了,因為她再無法提出申辯,他丈夫可選擇離開她,而75%的情況下,法庭都不會判決贍養費。由於通常是母親取得撫養權,這意味孩子的生活水準也下降了。
楼主美國華人Alvin 时间:2011-11-13 23:24:53
  •Where once the Family Court Systems allegiance was with the institution of marriage, it is now with the institution of divorce. Family Courts used to put effort into protecting the sanctity of marriage. Now the main concern is to make divorce quick and easy and get it off the docket.
    
    家事法庭原本是捍衛婚姻尊嚴的,現在卻在想方設法讓人輕易離婚。
    
    
    Where It Stands
      
      Family Court Judge Randall Hekman said, "It is easier to divorce my wife of 26 years than to fire someone I hired one week ago. The person I hire has more legal clout than my wife of 26 years. That's wrong."
    現在我要離開那結婚26年的太太,也許比解僱那一星期前才請來的員工還容易,那是錯誤的。
      
      If you look around, you will see daily evidence of the breakdown of the American family. Many believe this breakdown is due to no-fault divorce laws. They believe the value of marriage has lessened and because of this, spouses are no longer willing to invest as much energy into saving it.
    很多人認為這是做成美國家庭破碎的原因,亦因為如此,夫婦都不再願意努力維繫婚姻了。
      
      On the other hand, you have evidence like the 97% of married couples in Louisiana choosing to begin their marriages knowing they may one day have to deal with no-fault laws. Evidence that points to the fact that the majority of the couples have no problem with the no-fault laws.
    然而,既然Louisiana州97%的夫婦結婚前都選定了無過失離婚法,證明大部份夫婦都認為這沒有問題。
楼主美國華人Alvin 时间:2011-11-13 23:39:04
  關於財產分配:離婚時,法庭會對夫婦的婚內財產進行合理分配。
  
    Property Is Presumed To Be Marital Property Except For:
    以下并不属于婚内财产
    
    
    
     •Property acquired by gift, legacy or descent.
    来自馈赠,祖传财产或继承遗产
    
    •Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.
    用婚前的财产或来自馈赠,祖传财产或继承遗产换取的财产。
    
    •Property acquired by a spouse after a Judgment of Legal Separation.
    法定分居期间获得的财产。
    
    •Property excluded by valid agreement of the parties.
    夫妇协议剔除在外的财产。
    
    •Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
    法庭判定由一方给另外一方的财产。
    
    •Property acquired before the marriage.
    婚前获得的财产。
  
  
楼主美國華人Alvin 时间:2011-11-13 23:40:48
  The House
    
    This is one of the biggest issues surrounding the division of property in many divorce proceedings. If the house was purchased together by the spouses and the couple cannot agree on which spouse should leave the home, then the judge will decide the issue.
    Sometimes the judge will require that the house be sold and the profits split between the parties.
    有時法官會要求變賣房產,然後讓二人把收益分掉。
    
    Other times the judge will require one spouse to buy out the other spouse’s interest in the house or the judge can award the house to one spouse and property of equal value (cars, jewelry, personal property, money) to the other spouse.
    否則,法官就會要求其中一方向另一方收購業權,或者把房產判給其中一方,然後把同等價值的其他財產(車,珠寶,個人財產,金錢等)判給另外一方。
    
    Usually, if the couple has children then the judge lets the spouse who is the primary caregiver remain in the house with the children and the other spouse is entitled to other property.
    通常而言,若夫婦有子女的話,法官會讓最主要照顧孩子的一方保留房產,另一方則取得其他財產。
    
    However, if the house was purchased by just one spouse then that spouse usually gets to keep the house in a divorce proceeding.
    然而,如果房產是其中一方購買的,那他/她在離婚訴訟中通常可以保留該房產。
楼主美國華人Alvin 时间:2011-11-13 23:45:16
  之前提及過,美國的法院絕大多數實行〔無過失離婚〕,那麼,如果配偶因為對方通姦而訴諸法庭,法庭又會如何處理? 下面有說明。
  
    A majority of divorcing couples, who have adultery as the grounds of divorce, have feelings of resentment and hostility towards one another. Due to this it becomes difficult for both of them to draft a divorce settlement. It so happens that the adulterer develops an opinion that the adultery should not be given importance. On the other hand, the betrayed partner thinks that he / she must get more share due to the adulterer’s wrongdoing
    因為配偶與人通姦而鬧離婚的夫婦,大部份都對對方懷著很大的憤概和仇恨,因此他們往往難以就離婚安排達成和解。通姦者通常會認為,通姦在這個問題上並不重要,但被背叛的一方就覺得他/她應該因為對方的過失而獲得更多。
    
    All would agree that adultery in marital life is one of the vital betrayals. However, it does not result in a huge difference when the spouses are drafting a divorce settlement
    所有人都同意,在婚內與人通姦是嚴重的背叛,然而這不會讓夫妻的離婚安排有甚麼大分別。
    
    In a case involving adultery, if the partners are not able to keep their feelings separate, the best option is to approach the court. A neutral judge is more capable of dividing the assets in a fair manner as per the law
    當一宗離婚涉及通姦,如果夫婦無法將他們的感覺抽離,最好的選擇就是交給法院定奪,中立的法官更有能力以法律為基礎,用公平的方式去分配財產。
    
    In "No fault" divorce states, the courts solely expect that the couple is not residing as husband and wife. Except this, no other reason for divorce is needed. So, there is no need to have an evidence of adultery
    在採用〔無過失離婚〕的州份,法庭只會考慮夫婦已經不再視對方為丈夫和妻子一起生活這個因素,此外就不再需要其他理由。所以,通姦證據也不需要。
楼主美國華人Alvin 时间:2011-11-13 23:46:15
  On the whole, adultery cannot impact a divorce settlement to a great extent. However, it is possible to affect alimony and property settlement to some degree. The reason is that the betrayed partner can utilize the data regarding adultery as an influence to continue his / her present standard of life
    總體而言,通姦不能對離婚安排起多大作用,但在某些情況下會對贍養費或財產安排有一點影響,例如被背叛一方能用通姦材料,證明配偶與人通姦,
    會影響自己保持現在的生活水平。
    
    Assume that the spouse has depleted a considerable amount of money on the other person. In this case, the betrayed partner may be eligible for compensation. For example, a wife disbursed the rent of her boyfriend’s flat from her husband’s pay. The husband reported this fact to the court. The court issues orders to compensate the husband for the loss
    假設配偶在第三者身上花了很多錢,在這情況下,被背叛者或許有權獲得賠償。舉例來說,妻子用丈夫的錢來支付她男朋友的房租,當他向法庭告發此事實時,法庭可發出命令,賠償丈夫的損失。
    
    Adultery cannot impact the decisions regarding child custody in a divorce settlement. If the spouse committing adultery is a worthy parent, this spouse has rights regarding custody or visitation identical to those of a spouse not involved in adultery. The fundamental is that the court aims at ensuring that the child does not become a victim of his parent’s demeanor. Thus, if the court concludes that the adulterer is a better guardian, it may offer legal custody to this person
    通姦並不影響子女撫養權的安排,如果出軌的一方是稱職的家長,那他就跟沒有出軌的一方有同等的撫養權或探訪權。這是基於法庭的目的是要確保孩子不用成為家長的行為的受害者。所以,如果法庭斷定通姦的一方更適合當監護人,就可以將撫養權判給那一方。
楼主美國華人Alvin 时间:2011-11-13 23:51:16
  上文提及,75%的情況下,法庭都不會判決贍養費,那餘下的是怎樣處理呢?
  
  How Do The Courts Determine Alimony
  法庭如何判決贍養費
  
  What do the courts take into consideration when determining if alimony and whether or not it is paid?
  
  Ability to Pay:
  支付能力
  
  The first consideration when settling a spouse’s alimony obligation would be the ability to pay alimony. The court looks at the spouses gross income and reduces it by subtracting all mandatory deductions to come up with the net income.
  首先,法庭會比較兩人除去所有必需支出後餘下的收入。
  
  Mandatory deductions are things like income taxes, social security and health care. The courts do not consider things such as union dues or work related social dues as mandatory and will not deduct them from the gross salary. The courts put a higher priority on support payments than voluntary debts and would rather see voluntary debt not paid than have a spouse go without adequate support.
  這些必需支出包括入息稅,社保費用和醫療保險。法庭不會視公會繳款或與工作有關的活動費用為必需支出,故不會在收入中扣除,法庭是以維持生活所需的費用為優先的。
  
楼主美國華人Alvin 时间:2011-11-13 23:56:08
  Ability to Earn:
  賺錢能力
  
  Both spouses ability to earn is taken into consideration when it comes to alimony. The courts not only consider what a spouse actually earns but also considers what the potential for earning is.
  法庭會比較兩人的賺錢能力,當中不止是實際收入,而且還會考慮兩人的潛力(例如有沒有機會在將來賺取更多)。
  
  Ability to Self – Support:
  自給自足的能力
  
  Whether or not a spouse has marketable skills and is able to work outside the home is something else the courts take into consideration. Having custody of pre – school aged children and no access to daycare could make it impossible for a spouse to work outside the home.
  配偶是否擁有具市場價值的技能,及能否離家工作,也是法庭考慮的因素。如其中一方要撫養未達學齡的孩子,又無法求助日間托兒所,那就讓他/她無法離家工作。
  
  The ability to be self – support differs from actually being self – supporting. If a spouse has marketable skills but refuses to look for work, the court is likely to limit the amount of alimony and the length of alimony.
  能否自給自足,跟實際上是否自給自足是不同的。如夫婦中的一方擁有具市場價值的技能,卻拒絕找工作,法庭很有可能會限制他拿取贍養費的金額和期限。
  
  In many states, no alimony is awarded if both spouses are able to support themselves. If one spouse was dependent on the other during the duration of the marriage, that spouse is often awarded alimony for a rehabilitative period. This could be a time period lasting anywhere from several months to several years.
  在很多州份,如夫婦雙方都能自給自足,是不會判決贍養費的。如在婚姻存續期間,其中一方屬受養人的話,法庭通常會判他在過渡期內拿取贍養費,這過渡期一般為幾個月到幾年不等。
  
楼主美國華人Alvin 时间:2011-11-13 23:56:58
  If a spouse becomes self - supporting before the end of the court ordered support period the paying spouse can petition for the courts to terminate the alimony. In, however, the spouse is unable to become self – supporting during the allotted time he/she may also petition the courts for an extension of alimony. In some states this can only be done to keep the spouse from going on welfare.
  如其中一方配偶在法庭判決的過渡期屆滿前就開始自給自足的話,支付贍養費的一方就可向法庭申請終止贍養費。然而,若他在過渡期屆滿前仍無法自給自足,他也可以向法庭申請將拿取贍養費的時間延長。在一些州份,准許這樣做的唯一理由就是避免該配偶領取政府福利。
  
  Standard of Living During Marriage:
  
  When a court sets alimony, it often considers the standard of living during the marriage and tries to maintain this standard for both spouses where possible. Maintenance of a standard of living is more of a goal when it comes to alimony, than a guarantee.
  法庭決定贍養費時,會考慮夫婦在婚姻存續期間的生活水平,並嘗試讓二人在離婚後仍保持這水平,但這只是目標而非保證。
  
  Length of Marriage:
  
  If a marriage is relatively short and there are no children, the courts often refuse to award alimony. If there are children under school age, however, the courts often award alimony to the spouse who is given physical custody. Most courts feel that a child under school age is better served by having a full time parent at home.
  如婚姻存續期比較短,又沒有孩子的話,法庭通常都不會判決贍養費。如有未達學齡的小孩,法庭一般會把贍養費判給負責撫養小孩的一方,多數法庭會認為這個年齡的小孩較適宜有家長在家全職照顧。
  
  Tax Consequences of the Alimony:
  
  For federal income tax purposes, alimony paid under a written court order is deductible by the spouse who pays and is taxable to the recipient of the alimony. Child support, on the other hand, is tax – free to the recipient and not deductible by the spouse who pays.
  繳付聯邦稅時,法庭裁定支付贍養費的一方可減免稅項,而領取的一方則要交稅。然而,孩子撫養費卻是免稅的,而支付的一方亦不能用來扣稅。
  
  Debts:
  
  At the time of divorce, the court allocates debt incurred during the marriage between the spouses based on who benefits most from the asset that came with the debt. If the court orders a spouse to pay a large portion o the marital debts, it often reduces the amount of alimony that the spouse is ordered to pay.
  如夫婦在婚姻存續期內有債務的話,法庭會根據他們隨著此債務所獲得的資產,哪一方的利益最多,來分配二人的債務。如法庭命令其中一方支付大部份債務,通常也同時減免他要支付的贍養費。
  
  Professional Degree of License:
  
  Courts will not only take into consideration the amount of financial support given during a marriage but, also the amount of emotional support. If a spouse worked and supported the other spouse through school, some states will take this into consideration. The spouse could ask for and receive compensation in the form of alimony for all the years he/she worked while the other was in school.
  法庭不單會考慮婚姻存續期內,夫婦間的財政支援,也會考慮感情上的支持。如果其中一方當時在工作,並支持另一方上學的話,有些州會考慮這點。而當時在工作的一方就可以此為由,要求以贍養費的形式獲得補償,彌補自己過去一直工作讓配偶上學的那段日子的付出。
  
作者:小草开花136 时间:2011-11-16 21:16:55
  抗议婚姻法群1号:142549811,QQ2群127491829欢迎加入!
  
作者:tengaishaku 时间:2011-11-30 21:28:27
  顶一下,让更多无知的人看到。
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