Divorce - Equitable Distribution of Marital Property

Question 1

What are the key concepts for the effects of marital dissolution?

Answer 1

1. equitable distribution & division of marital Property
2. Spousal Support
3. Child Custody
4. Child Support

Question 2

What is equitable distribution?

Answer 2

• DEFINE
  
  • does not mean 50/50
  • means what is fair & reasonable

Question 3

What is considered separate property?

Answer 3

• not subject to equitable distribution
• what constitutes separate property is defined by statute
• INCLUDES
  
  • property described in an agreement as marital property - prenup
    
    • ECEPTION - when the increase in value is due to the contribution of the other spouse, the increase in value is marital
  • propety in exchange for or in the increase in the value in exhange for separate property
  • compensation for personal injuries
  • property inherited or given as a gift to one spouse
  • property acquired before marriage

Question 4

What is marital property?

Answer 4

• Should be equitably distributed considering the circumstances of the ptys
• DEFINE - all property that is acquired by either spouse during the marriage & before the execution of a separation agreement or divorce proceddings regarless of form title held
• ISSUES
  
  • Pension benefits - include the amount accurred from time of marriage to time of commencement of divorce; a portion can be gven to the spouse upon maturity
  • Professional Degree/Licenses -
    
    • obtained during marriage is a marital asset in NY for equitable distribution (enhanced earning capacity)
    • status of license or decree turns on when the work necessary to acquire has been finally completed rather then when it is actually awarded
  • Professional Practice - if substantial practice, value is subject to equitable distribution
  • Artistic or Athletic Skills - special skills of measurable value are marital assets
    
    • artist. ect may have been enabled to become an exceptional wage earner that may be distributed on a sufficient proof of value
  • Inherited or comingled property - when placed in a joint acct or used to purchase jpint assets

Question 5

What happens if a spouses separate property appreciates in value during the marriage? How is that appreciation classified?

Answer 5

• If the nontitled spouse contributed to the value indirect or direct contribution this portion will be entitled to equitable claim
• if the increase in value is due to market forces/passive appreciation = no equitable claim

Question 6

What factors effect distribution?

Answer 6

• Court can consider:
  
  1. Income of each pty @ time of marriage & @ time of commencement of action
  2. Duration of marriage
  3. Need of a custodial parent to occupy the marital residence or its effects
  4. Loss of inheritance & pension rights upon dissolution
  5. Maintainence award
  6. Equitable claim of indirect/direct
  7. Spousals non-moetary contribution
     
     • Liquid/non-liquid character of all marital assets
  8. future financial circumstances of the ptys
  9. impossibility of assertaining value
  10. economic desirability of retaining such assets
  11. tax liability
  12. wasteful disappating assets
  13. any transfer made in contempation of matrimonial action w/o fair compensation
  14. anything else

Question 7

Is fault a factor in equitable dissolution?

Answer 7

• Ordinarily no
  
  • adultery
• Agrecious types may be considered
  
  • criminal grounds - cruel & inhuman

Question 8

Disstributive Award