Indidents of Marrital Dissolution

Question 0

Separate Property Includes

Answer 0

1. acquired before marriage;
2. Compensation for personal injuries
3. acquired in exchange for separate property EXCEPT where appreciation due to contributions of other spouse.
4. separate property in written agreement of the parties;
5. gifts to one spouse
6. property received by bequest or devise

Question 1

Equitable Distribution - In general

Answer 1

available on granting of divorce, annulment, or declaration of nullity

“equitable” does not mean equal.

distinguishes between Marital property and Separate property. Separate property is not subject to equitable distribution.

Question 2

Marital Property

Answer 2

property acquired during the marriage 
by either spouse
prior to separation agreement or commencement of divorce
regardless of form title is held 
except as provided in an agreement.

Subject to equitable distribution based on equities involved.

Question 3

Marital Property - Pension Benefits

Answer 3

Matured - accrued from employment after marriage is marital property.

Unmatured Vested rights in noncontributory pension plan -
marital property if acquired between date of marriage and commencement of matrimonial action.

Court may order equitable portion of the PRESENT VALUE of pension

OR provide ON MATURITY recipient pay part of each payment received

Question 4

Marital Property - Professional degrees and licenses

Answer 4

enhanced earning capacity
obtained during marriage are a marital asset subject to ED

turns on when work necessary to acquire it is complete
rather than when awarded.

Question 5

Marital Property: Professional Practice

Answer 5

value of a substantial practice is subject to equitable distribution.

Question 6

Marital Property: Artistic and Athletic Skills

Answer 6

skills with measurable value are marital assets

Question 7

Marital Property: Family Gifts and Bequests

Answer 7

given to both spouses [wedding gift] is marital property.

inherited or gifted property placed in joint account,
used to purchase joint assets,
funds are commingled and are marital property.

Question 8

Separate Property defined

Answer 8

remains separate

not subject to equitable distribution.

Question 9

Temporary alimony

Answer 9

can order despite parties residing in same abode.

order not dependent on showing reasonable probability of success.
only necessity

Question 10

Death of a spouse prior to entry of judgement.

What effect?

Answer 10

acton abates

surviving spouse not entitled to equitable distribution.

Question 11

Marital Property: Joint Bank Accounts

Answer 11

rebuttably presumed each has undivided one-half interest in account.

overcome by evidence that account was titled jointly as a convenience no intent to creating a beneficial interest AND
funds originated solely fro separate property of spouse claiming separate interest

Question 12

Property given by parents to both spouses

Answer 12

Is marital property, not separate property.

Question 13

Inherited or gifted property placed in a joint account and used to purchase a joint asset.

Answer 13

funds are commingled and become marital property.

Particularly where claim arises years after funds were commingled.

Question 14

Factors Affecting Distribution (14)

Answer 14

1. Income & property of parties at time of marriage and commencement of action.
2. Marital duration, age and health of parties
3. custodial parents need to occupy residence and use effects.
4. Loss of pension or inheritance rights
5. loss of health insurance benefits
6. Any maintenance award
7. equitable claims of direct or indirect contribution to acquisition of marital property by non-title holding spouse
8. Liquid or non-liquid character of all marital property.
9. future financial circumstances of each party
10. Impossibility of evaluating an asset or interest in a business and desirability of interest remaining intact and free from interference.
11. tax consequences
12. wasteful dissipation by either spouse
13. transfers or encumbrances made in contemplation of action.
14. any other just and proper considerations

Question 15

Courts Discretion in determining an equitable distribution of marital property.

Answer 15

The court must consider 14 factors but
accord them any weight appropriate,
absent an abuse of discretion. [NYDRL 236(B)(5)(d)]

Question 16

Consideration of the income and property of the parties at the time of the marriage and at the commencement of the action.

Answer 16

used as evidence of earning capacity of the parties.

spouse with greater earning capacity may need lesser share of marital property for future security.
Same with spouse with extensive separate property holdings

Question 17

Needs of the custodial parent to the marital residence and to use or ownership of the household effects.

Answer 17

Court decides questions of title and occupancy
without regard to title
unless the home is genuinely separate property.

can grant exclusive occupancy to the custodial parent and
sale and division of proceeds may be delayed until custodial parent remarries or children are emancipated [Ettinger v Ettinger]

Question 18

Courts consideration of any award of maintenance on equitable distribution of marital property.

Answer 18

Courts balance awards of maintenance and property distribution.
May give a greater share to spouse making substantial or long term maintenance payments.

Question 19

Courts consideration of the liquidity of marital property.

Answer 19

assets not easily sold or sold only at avoidable loss,
will determine assets need not be liquidated.
court will provide equitable distribution of other property
or a distributive award to receive equity.

Question 20

Courts consideration of the difficulty in evaluating any component asset or any interest in a business or the desirability of retaining such an asset or interest intact and free from interference.

Answer 20

Courts evaluate business interests and professional practices,
despite difficulty,
and grant distributive awards
instead of share of the business or practice.

Question 21

Just and Proper Considerations of the court in the equitable distribution of property.

Answer 21

Fault is not a factor in equitable distribution [Blickstein v Blickstein]
Egregious conduct (attacks) may be considered [Wenzel v Wenzel]
Adultery is not sufficiently egregious to be a factor [Nolan v Nolan]

Question 22

Distributive Awards - When appropriate

Answer 22

If ED is appropriate but impractical, or a business interest,
court will make a distributive award to achieve equity

Award may be a lump sum or fixed payments.

Does not include payments treated as income to recipient under the IRS code.

Question 23

Are obligations under a divorce decree alimony or maintenance within the meaning of the Bankruptcy Code’s discharge exception.

Answer 23

is a question of Bankruptcy law to decided by the bankruptcy court
on the basis of all relevant facts and circumstances.

Question 24

Availability of Special Relief - Types

Answer 24

order health insurance for spouse or children,
life insurance naming other spouse or children as beneficiaries.
(Until the beneficiary remarries or the parties obligation terminates).

pay rents, mortgages, insurance, or other property expenses,
despite both parties live in the same residence.

Question 25

Attorneys Fees in a Matrimonial Action

Answer 25

may order payment legal expenses as justice requires.

pendente lite award of attorneys fees prior to final judgement where the petitioning party is unable to proceed otherwise.

Marital fault is considered in award of counsel fees [Jacoby v Jacoby]

order payment of other expenses for accountants, appraisers, and investigations

the court determines necessary to enable the spouse to carry on or defend the action or proceeding.