* Economic Issues Surrounding Marital Termination * (Note: Most tested!!) Flashcards
Maintenance while the case is pending
- either party can ask for TEMPORARY MAINTENANCE designed to preserve the status quo during the case
- Formula for calculating temporary maintenance/support is in the statute, but the court can adjust the formula in its discretion
Post-Judgment Maintenance
- 19 statutory factors that the court should consider + any others that it deems “just and proper” when it comes to determining whether there should be maintenance and setting the amount
- USE THE FACTS OF THE PROBLEM TO DETERMINE WHAT SHOULD BE CONSIDERED—you won’t be wrong if you talk about a factor not in the statute b/c court has discretion to consider just & proper
- health & age– will they be able to get work to self-support
- earning capacity/education level- if one spouse has been out of the job market for decades they may not have many job opportunities; if one spouse wants to go back to school, then maybe maintenance should be keyed to the period of time they are in school
- Who is going to be custodian of minor children—hard to work while watching kids; additional burdens/expenses
- How much property does each party have—you have a lot, maybe you don’t need maintenance
- Who is at fault (if anyone)—if you abused or cheated maybe you shouldn’t get maintenance or at least not as much
Counsel Fees
there is a rebuttable presumption that the economically POORER SPOUSE should get COUNSEL FEES
Maintenance is a continuing obligation, which triggers 3 follow-up considerations:
1- Modification
2- Termination
3- Enforcement
.
Modification of Maintenance
- maintenance after marital termination can be modified based on a showing of “substantial change in circumstances” by either the payor or the payee
- substantial change can be almost anything & is discretionary to judge
- any modification is PROSPECTIVE only; past-due maintenance payments (ARREARS) are liquidated damages and NOT modifiable and must be paid. So if you want modification you better seek it promptly
NOTE: modifying a SEPARATION AGREEMENT (not judicial decree of separation) is a higher bar = “Extreme Hardship”
Termination of Maintenance
- court specified
- death of either party
- re-marriage of recipient OR if recipient cohabitates w/ someone else as if married
- separation agreement can K around automatic terminations
Enforcing Maintenance
- can seize your property
- can send boss a “wage reduction order” which makes your boss send your spouse some of your wages
- can take away your license
- can take away your professional license
- can take away/deny you recreational licenses (hunting, fishing)
- can hold you in contempt of court b/c maintenance is a court order
How is Property Divided in NY?
- EQUITABLE DISTRIBUTION STATE!!
- Two-step Process:
(1) categorize assets as either H separate, W separate, or marital property
(2) Distribute the assets
What qualifies as separate property? (5)
1- any asset owned by a spouse prior to the marriage
2- any gift or inheritance received by a spouse in their soul name after the date of the marriage
3- property agreed to be separate is separate
4- personal injury compensation designed to compensate for pain & suffering
5- any appreciation of the value of items 1-4 UNLESS due to the other spouses participation and/or effort, in which case it becomes a hybrid asset
NOTES:
- dividing hybrid assets = original value is separate, appreciate value is marital property
- NY recognizes that a spouse can lead to appreciation via participation/effort by staying home and taking care of home/children so as to free up the other spouse to become more valuable
What qualifies as marital assets?
- EVERY piece of property acquired during the pendency of the marriage, regardless of who’s salary paid for it or whose name it is in
- if, during the course of the marriage, one spouse earned a professional degree or license, that degree/license is considered a marital asset. Court will determine the value (usually based on increased earning potential) and will split it as it deems fit
How does the court divide the marital assets?
- equitable determination
- Court can consider any factor it deems just EXCEPT MARITAL FAULT that is not egregious or does not shock the conscience!
- After considering equitable factors, the court comes out with percentage owed to each. Then it can distribute in one of two ways: (1) in kind; or (2) via distributive award
Example of SOME equitable factors (only mention these if relevant to the fact pattern)
- who gets the kids
- is a spouse losing health insurance
- loss of inheritance rights
- needs of a custodial parent to live in the marital home to raise the children there
Distribution in Kind
Court gives specific marital assets to specific spouses
Distributive Award
Court totals the value of the marital assets and then orders a party to write the other party a check for the monetary value of that party’s determined percentage
One-time judgment and NOT modifiable
Family Court Jurisdiction v. Supreme Court Jurisdiction
- FC does not have jurisdiction over divorces, separations, or annulments. These matters must be brought in the supreme court.
- FC generally has concurrent jurisdiction w/ the supreme court in support proceedings w/ some exceptions.
- In a post-divorce support modification proceeding where the original divorce decree is issued by the supreme court and CONTAINS A CLAUSE specifying that the decree be enforced or modified only in the Supreme Court, the FC will not have jurisdiction.
Modifying Property Distributions?
TRICK QUESTION
Unlike awards for maintenance, child support, or child custody, property distribution awards are not modifiable.
