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FCA - FUTURE CLERK 2023: THE CLERKENING > Article 4 Volume 2 > Flashcards

Article 4 Volume 2 Flashcards

1
Q

412 - SPOUSAL SUPPORT:

Either spouse can file a petition against their husband/wife for financial support.

  • An order of spousal support (IS/IS NOT) mandatory,
  • It (MAY/SHALL) be ordered when the court determines that a husband/wife is financially able to support their spouse.
A

IS NOT…. MAY

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2
Q

412 - SPOUSAL SUPPORT:

When considering an order of spousal support, the court should consider the 10 factors listed in the ________________________. (Same factors that must be considered in determining whether maintenance should be awarded in the context of a divorce proceeding).

A

Domestic Relations Law Sec. 236(6)(a)

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3
Q

412 - SPOUSAL SUPPORT:

The parties must be___________ before the court can consider an award of spousal support. Once the parties are divorced, the terms of the ___________ APPLY.

A

PRESENTLY MARRIED ………. DIVORCE JUDGMENT

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4
Q

412 - SPOUSAL SUPPORT:

Modification of Divorce Decree- the family court may modify a divorce judgment granting an award of alimony or maintenance, upon a showing of a change in circumstances, FCA Sec. 466.

A

Modification of Divorce Decree- the family court may modify a divorce judgment granting an award of alimony or maintenance, upon a showing of a change in circumstances, FCA Sec.

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5
Q

412 - SPOUSAL SUPPORT:

“________ “ shall mean the spouse with the higher income.

A

payor

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6
Q

412 - SPOUSAL SUPPORT:

“_________ “ shall mean the spouse with the lower income.

A

payee

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7
Q

412 - SPOUSAL SUPPORT:

“income cap” shall mean up to and including ________________ of the payor’s annual income; provided, however, beginning March first, two thousand twenty and every _________ years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers for the prior two years multiplied by the then income cap and then rounded to the nearest __________________ .

  • The ____________________ shall determine and publish the income cap.
A

one hundred eighty-four thousand dollars…..two ..one thousand dollars…… office of court administration

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8
Q

412 - SPOUSAL SUPPORT:

KNOW THIS (6) ___________ support shall be calculated prior to child support because the amount of spousal support shall be subtracted from the _________ income and added to the ____________ income as part of the calculation of the child support obligation.

A

spousal…… payor’s……… payee’s

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9
Q

412 - SPOUSAL SUPPORT:

Notwithstanding the provisions of this section, where the guideline amount of spousal support would reduce the payor’s income below the ____________ for a single person, the guideline amount of spousal support shall be the difference between the ________________ and the self-support reserve.

A

payor’s income……..self-support reserve

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10
Q

412 - SPOUSAL SUPPORT:

If the payor’s income is below the __________ , there shall be a rebuttable presumption that no spousal support is awarded.

A

self-support reserve

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11
Q

412 - SPOUSAL SUPPORT:

  1. (a) The court shall order the guideline amount of spousal support up to the __________ in accordance with subdivision three of this section, unless the court finds that the guideline amount of spousal support is ___________ or inappropriate, which finding shall be based upon consideration of any one or more of the following factors, and adjusts the guideline amount of spousal support accordingly based upon consideration of the following factors:
  • (1) the age and health of the parties;
  • (2) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
  • (3) the need of one party to incur education or training expenses;
  • (4) the termination of a child support award during the pendency of the spousal support award when the calculation of spousal support was based upon child support being awarded which resulted in a spousal support award lower than it would have been had child support not been awarded;
  • (5) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a support proceeding without fair consideration;
  • (6) the existence and duration of a pre-marital joint household or a pre-support proceedings separate household;
  • (7) acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence;
  • (8) the availability and cost of medical insurance for the parties
  • (9) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity;
  • (10) the tax consequences to each party;
  • (11) the standard of living of the parties established during the marriage;
  • (12) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
  • (13) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party;
  • (14) any other factor which the court shall expressly find to be just
A

cap………..unjust

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12
Q

412 - SPOUSAL SUPPORT:

(b) If the court finds that the guideline amount of spousal support is unjust or inappropriate, it may adjust the amount.

The court must set forth the guideline amount, the factors it considered, and the reasons for the adjustment in a written decision or on the record.

This decision cannot be waived by either party or counsel.

A

412 - SPOUSAL SUPPORT:

(b) Where the court finds that the guideline amount of spousal support is unjust or inappropriate and the court adjusts the guideline amount of spousal support pursuant to this subdivision, the court shall set forth, in a written decision or on the record, the guideline amount of spousal support, the factors it considered, and the reasons that the court adjusted the guideline amount of spousal support.. Such decision, whether in writing or on the record, shall not be waived by either party or counsel.

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13
Q

412 - SPOUSAL SUPPORT:

(c) Where either or both parties are unrepresented, the court shall not enter a spousal support order unless the court informs the unrepresented party or parties of the ___________ of spousal support.

A

guideline amount

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14
Q

412 - SPOUSAL SUPPORT:

7.
If a party fails to appear in court or provide sufficient evidence to determine their income, the court may order spousal support based on the needs of the payee or the standard of living of the parties prior to the start of the spousal support proceeding, whichever is greater.

This order may be retroactively modified _________ without a showing of a change in circumstances if there is substantial newly discovered evidence.

A

upward

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15
Q

412 - SPOUSAL SUPPORT:

For a written agreement or order for spousal support made before amendments of 2015, the fact that the spousal support guidelines have changed since then is not enough to warrant a modification of the support order.

  • A __________________________ since the order was entered would be needed to modify it.
A

substantial change in circumstances

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16
Q

412 - SPOUSAL SUPPORT:

The court may modify an order of spousal support upon a showing of a substantial change in circumstances.

Unless so modified, any order for spousal support shall continue until the earliest to occur of the following:

(a) a _______________ or agreement between the parties;
(b) an___________________ or agreement between the parties entered into on the record in open court;
(c) issuance of a ____________________ or other order in a matrimonial proceeding;
(d) the________________of either party.

A

written stipulation…….. oral stipulation….. judgment of divorce……….. death

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17
Q

413- CHILD SUPPORT:

The parents of a child under the age of __________ YEARS of age are chargeable with the support of such child, unless the children are “emancipated” earlier, in fair and reasonable sum as the court may determine.

Parents cannot be ordered to pay child support beyond the child’s ________ birthday.

A

TWENTY ONE (21) …….. 21st

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18
Q

413- CHILD SUPPORT:

Generally, children are “emancipated” when they are ________

A

self-supporting.

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19
Q

413- CHILD SUPPORT:

The child support percentage shall mean:
17% of the combined parental income for one child +8
25% of the combined parental income for two children +4
29% of the combined parental income for three children +2
31% of the combined parental income for four children +4
No less than 35% of the combined parental income for five or more children

A

413- CHILD SUPPORT:

The child support percentage shall mean:
17% of the combined parental income for one child +8
25% of the combined parental income for two children +4
29% of the combined parental income for three children +2
31% of the combined parental income for four children +4
No less than 35% of the combined parental income for five or more children

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20
Q

413- CHILD SUPPORT:

What are the child support percentages?

A

413- CHILD SUPPORT:

The child support percentage shall mean:
17% of the combined parental income for one child +8
25% of the combined parental income for two children +4
29% of the combined parental income for three children +2
31% of the combined parental income for four children +4
No less than 35% of the combined parental income for five or more children

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21
Q

413- CHILD SUPPORT:

Income is based on (GROSS/NET) total income as reported in the most recent federal income tax return, or other investment income.

lncome from the following sources are included as well:

  • (A) workers’ compensation,
  • (B) disability benefits,
  • (C) unemployment insurance benefits,
  • (D) social security benefits,
  • (E) veterans benefits,
  • (F) pensions and retirement benefits,
  • (G) fellowships and stipends,
  • (H) annuity payments, and
  • (I) alimony or maintenance actually paid or to be paid
A

Gross

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22
Q

413- CHILD SUPPORT:

The court may attribute income from other such resources available to the parent including:

  1. Non income producing assets
  2. Meals, lodging, memberships, automobiles or other employment perks
  3. Fringe benefits as part of compensation for employment
  4. Money, goods or services provided by relatives or friends
A

413- CHILD SUPPORT:

The court may attribute income from other such resources available to the parent including:
1. Non income producing assets
2. Meals, lodging, memberships, automobiles or other employment perks
3. Fringe benefits as part of compensation for employment
4. Money, goods or services provided by relatives or friends

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23
Q

413- CHILD SUPPORT:

(NEWISH) *Incarceration (SHALL/SHALL NOT) be considered voluntary unemployment, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment

A

SHALL NOT

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24
Q

413- CHILD SUPPORT:

The following shall be deducted from income prior to applying formulas to determine the Adjusted Gross Income in order to calculate the amount of support:

  1. unreimbursed employee expenses
  2. alimony or maintenance paid or to be paid to a spouse not a party to the action, or to a spouse who is a party to the action if there is a specific adjustment provided in the order or agreement for support to be paid upon the termination of alimony or maintenance
  3. child support actually paid
  4. public assistance
  5. supplemental security income
  6. NYC or Yonkers income tax
  7. FICA taxes paid
A

413- CHILD SUPPORT:

The following shall be deducted from income prior to applying formulas to determine the Adjusted Gross Income in order to calculate the amount of support:
1. unreimbursed employee expenses
2. alimony or maintenance paid or to be paid to a spouse not a party to the action, or to a spouse who is a party to the action if there is a specific adjustment provided in the order or agreement for support to be paid upon the termination of alimony or maintenance
3. child support actually paid
4. public assistance
5. supplemental security income
6. NYC or Yonkers income tax
7. FICA taxes paid

25
Q

413- CHILD SUPPORT:

The “Self- support reserve” shall mean ______ of the poverty income guidelines for a single person. On ________, of each year the self-support reserve shall be revised to reflect the annual updating of poverty income guidelines:

A

135.00%…….
MARCH 1

26
Q

413- CHILD SUPPORT:

The court shall determine the combined parental income up to the amount set forth in SSL 111-i(2)b and shall multiply this amount by the appropriate child support percentage.

Such amount shall be prorated in the same proportion as each person’s income is to the combined parental income

Any income in excess of the amount determined in SSL 111-i(2)b will result in a support obligation in the discretion of ________

A

the court

27
Q

413- CHILD SUPPORT:

Non-custodial parents income below the poverty income guidelines: Where the annual amount of the basic child support obligation would reduce the noncustodial parents income below the poverty income guidelines for a single person the basic child support obligation shall be __________ DOLLARS PER MONTH. For such a person, unpaid child support arrears in excess of ________ dollars shall not accrue

A

TWENTY-FIVE (25.00) … 500.00

28
Q

413- CHILD SUPPORT:

Where the annual amount of the basic child support obligation would reduce the noncustodial parents income below the self support reserve but not below the poverty income guidelines for a single person, the basic child support obligation shall be __________ or the difference between the non custodial parents income and the self support reserve whichever is greater

A

FIFTY(50.00) DOLLARS PER MONTH

29
Q

413- CHILD SUPPORT:

***Where a parent is or may be entitled to receive non-recurring payments from extraordinary sources not normally considered as income such as:

  1. Life insurance policies
  2. Discharges of indebtedness
  3. Recovery of bad debts
  4. Gifts and inheritances
  5. Lottery winnings, yes Lottery winnings and scratch offs too!!

The court may allocate a proportion of the same to child support, and such amount shall be paid in a manner to be determined by the court

A

413- CHILD SUPPORT:

***Where a parent is or may be entitled to receive non-recurring payments from extraordinary sources not normally considered as income such as:
1. Life insurance policies
2. Discharges of indebtedness
3. Recovery of bad debts
4. Gifts and inheritances
5. Lottery winnings, yes Lottery winnings and scratch offs too!!

The court may allocate a proportion of the same to child support, and such amount shall be paid in a manner to be determined by the court

30
Q

413- CHILD SUPPORT:

The court shall calculate the basic child support obligation and the non-custodial parent’s pro rata share.

The court may find that the non-custodial parent’s pro rata share is unjust or inappropriate based upon consideration of the following factors:

  1. The financial resources of both parents
  2. The physical and emotional health of the child and any special needs
  3. The standard of living the child would have had if not for the parents break up
  4. The tax consequences of the parties
  5. The non-monetary contributions the parents will make
  6. The educational needs of the __________
  7. A determination that the gross income of one parent is substantially less than the other
  8. Other children the non custodial parent is providing support for from other relationships
  9. Extraordinary expenses incurred by the non-custodial parent in exercising visitation
  10. Any other factors the court deems relevant
A

PARENTS

31
Q

413- CHILD SUPPORT:

Written Decision- Court must state their reasons for ____________ from the formula amount in writing.

A

deviating

32
Q

413- CHILD SUPPORT:

DEFAULT ORDER - If the respondent does not appear in court or if the court cannot determine the respondent’s income based on the evidence submitted at the hearing, the court must enter an order of support equal to the ___________ or ____________ of the child, whichever is greater.

A

needs or standard of living

33
Q

413- CHILD SUPPORT:

CHILD CARE EXPENSES - Child care (IS/IS NOT) mandatory. Where the custodial parent is seeking work and incurs childcare expenses, the court shall apportion the cost of these expenses among the parties

A

is

34
Q

413- CHILD SUPPORT:

EDUCATIONAL EXPENSES - The respondent (MAY/SHALL) be ordered to pay for a share of educational expenses. The parties may be ordered to pay for educational expenses as are in the best interests of the child

A

MAY

35
Q

413- CHILD SUPPORT:

Health Insurance: (416) All child support orders must contain a provision for health insurance.

The court must follow the following steps in making an order:

(a)Employer sponsored health insurance: (Priority)

The Court must order one or both of the parties to enroll their child/children/spouse in a health insurance plan IF the court has determined that the party has health insurance benefits available to them.

A

413- CHILD SUPPORT:

Health Insurance: (416) All child support orders must contain a provision for health insurance.
The court must follow the following steps in making an order:
(a)Employer sponsored health insurance: (Priority)
The Court must order one or both of the parties to enroll their child/children/spouse in a health insurance plan IF the court has determined that the party has health insurance benefits available to them.

36
Q

413- CHILD SUPPORT:

Health Insurance Benefits include employer provided:

Medical Plans
Dental Plans (Lisa needs braces)
Optical Plans
Prescription Drug Plan
Health care services

A

413- CHILD SUPPORT:

Health Insurance Benefits include employer provided:
Medical Plans
Dental Plans
Optical Plans
Prescription Drug Plan
Health care services

37
Q

413- CHILD SUPPORT:

Available- Health Insurance Benefits are available when:

  • The cost of the insurance is reasonable
    • Reasonable in cost- if the cost does not exceed ______ of combined parent income
A

5.00%

38
Q

413- CHILD SUPPORT:

Health insurance benefits are considered “reasonably accessible” if the child lives within the area covered by the health plan, which should be within _______ minutes or ________ miles to the health services provided.

A

30… 30

39
Q

413- CHILD SUPPORT:

(b) In the event that there is no employer sponsored health insurance available to either party:

The court must order the custodial parent to apply for publicly funded Health Insurance (Medicaid or Child Health Plus/CHIP).

The court must also order the parties to enroll their child in a health insurance plan if it becomes available through an employer in the future.

A

413- CHILD SUPPORT:

(b) In the event that there is no employer sponsored health insurance available to either party:
The court must order the custodial parent to apply for publicly funded Health Insurance (Medicaid or Child Health Plus/CHIP).
The court must also order the parties to enroll their child in a health insurance plan if it becomes available through an employer in the future.

40
Q

413- CHILD SUPPORT:

(c) Cost for health insurance- The court must apportion (pro-rata split) the cost of enrolling the dependents in the plan between the parties, unless the court finds that it is unjust or inappropriate to do so.

Future unreimbursed medical expenses - the respondent must pay the pro-rata share of these medical expenses, which is calculated the same way as the Child care expenses.

A

413- CHILD SUPPORT:

(c) Cost for health insurance- The court must apportion (pro-rata split) the cost of enrolling the dependents in the plan between the parties, unless the court finds that it is unjust or inappropriate to do so.
Future unreimbursed medical expenses - the respondent must pay the pro-rata share of these medical expenses, which is calculated the same way as the Child care expenses.

41
Q

413- CHILD SUPPORT:

CASH MEDICAL SUPPORT - The court shall determine the party’s obligation to provide health insurance benefits and to pay “cash medical support” which means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by a parent through an employer or organization, including such employers or organizations which are self insured, or through other available health insurance or health care coverage plans, and/or for other health care expenses not covered by insurance.

  • This amount shall be no more than ____ of the gross income or the difference between the non custodial parents income and the Self Support Reserve, whichever is less
A

5.00%

42
Q

413- CHILD SUPPORT:

Life and Accident Insurance policies
The court may order the respondent to purchase an ACCIDENT INSURANCE or LIFE INSURANCE POLICY and name the petitioner as the beneficiary [FCA Section 416(a)]

A

413- CHILD SUPPORT:

Life and Accident Insurance policies
The court may order the respondent to purchase an ACCIDENT INSURANCE or LIFE INSURANCE POLICY and name the petitioner as the beneficiary [FCA Section 416(a)]

43
Q

413- CHILD SUPPORT:

lf the parties execute an agreement or stipulation regarding support, there shall be a provision stating they are aware of the fact that this article may direct support in a proper amount by statute

A

413- CHILD SUPPORT:

lf the parties execute an agreement or stipulation regarding support, there shall be a provision stating they are aware of the fact that this article may direct support in a proper amount by statute

44
Q

413- CHILD SUPPORT:

lf either of the parties are unrepresented, only a________________ may be issued unless they have received a copy of the child support __________ promulgated by the commissioner of social services

A

temporary order of support………. standards chart

45
Q

413- CHILD SUPPORT:

A person is not liable to support the adopted child of their spouse if the child was adopted after the adopting spouse and the non-adopting spouse began living separate and apart pursuant to a legally recognizable separation agreement or decree under the Domestic Relations Law. This liability shall not be imposed for so long as the spouses remain separate and apart after the adoption.

A

IS NOT

i.e If you and your spouse separate, you don’t have to pay support for a kid they adopt after you were separated.

46
Q

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

1.Notwithstanding any other law, a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of ____________ , when it shall appear to the satisfaction of the court that:

  • the person is developmentally disabled,
  • resides with the person seeking such support, and
  • is principally dependent on such person for maintenance.
A

twenty-six

47
Q

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker and acting within their lawful scope of practice.

A

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker and acting within their lawful scope of practice.

48
Q

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

Upon petition brought by the parent or kinship caregiver of an adult child with a disability (adult dependant), support will be calculated as if it were for a _________ as outlined FCA 413.

A

minor child

49
Q

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

In addition the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the child support obligation.

The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned _________ until the individual turns ________ If a child support order ended at the age of ________ then such time period shall be from when the child turned _________ until the individual turns __________

A

Twenty-one (21) ……. twenty-six…. eighteen ………. eighteen (18) ………. twenty-six (26).

50
Q

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

  1. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such dependents, as well as to enforce or modify orders or judgments.
A

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

  1. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such dependents, as well as to enforce or modify orders or judgments.
51
Q

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

  1. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “__________ “ if such direction would assist in maximizing assistance to the child.
A

exception trust

52
Q

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

  • Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities;
  • provided, however, that such orders (SHALL/SHALL NOT) be eligible for services relating to the establishment of paternity and the establishment and enforcement of support obligations pursuant to social services law.
A

shall not

53
Q

§ 413-B. SUPPORT ORDERS FOR CERTAIN ADULT DEPENDENTS.

  1. A determination made pursuant to this section that the person is or is not developmentally disabled (SHALL/SHALL NOT) be binding on the state, a local government or the person for any other purpose, including determinations of eligibility for services authorized by the office for people with developmental disabilities.
A

SHALL NOT

54
Q

415 - DUTIES TO SUPPORT RECIPIENT OF PUBLIC ASSISTANCE OR WELFARE AND PATIENTS IN INSTITUTIONS IN THE DEPARTMENT OF MENTAL HYGIENE.

Generally a parent is responsible for a child’s support until age TWENTY-ONE (21) even if the child is a __________ or _________

A

recipient of public assistance or a patient in a mental institution

55
Q

416- ELEMENTS OF SUPPORT; PROVISIONS FOR ACCIDENT, LIFE AND HEALTH INSURANCE BENEFITS.

The court may include in a requirement in an order for support the providing of

  • necessary shelter,
  • food,
  • clothing,
  • care,
  • medical attention,
  • expenses of confinement,
  • the expense of education and
  • payment of funeral expenses
A

416- ELEMENTS OF SUPPORT; PROVISIONS FOR ACCIDENT, LIFE AND HEALTH INSURANCE BENEFITS.

The court may include in a requirement in an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, the expense of education and payment of funeral expenses

56
Q

416- ELEMENTS OF SUPPORT; PROVISIONS FOR ACCIDENT, LIFE AND HEALTH INSURANCE BENEFITS.

The court may also order a party to purchase and maintain accident or life insurance naming the person or persons on whose behalf the petition for support is brought as the irrevocable beneficiaries during a period of time fixed by the court

A

416- ELEMENTS OF SUPPORT; PROVISIONS FOR ACCIDENT, LIFE AND HEALTH INSURANCE BENEFITS.

The court may also order a party to purchase and maintain accident or life insurance naming the person or persons on whose behalf the petition for support is brought as the irrevocable beneficiaries during a period of time fixed by the court

57
Q

416- ELEMENTS OF SUPPORT; PROVISIONS FOR ACCIDENT, LIFE AND HEALTH INSURANCE BENEFITS.

The court can also order a ___________ who may have the option of covering the person in need of support with health coverage to do so and to insure timely payments of health insurance claims

A

responsible relative

58
Q

416- ELEMENTS OF SUPPORT; PROVISIONS FOR ACCIDENT, LIFE AND HEALTH INSURANCE BENEFITS.

Health insurance benefits are considered “reasonably accessible” if the child lives within the area covered by the health plan, which should be within ______ minutes or ________ miles to the health services provided

A

30 ………. 30

FCA - FUTURE CLERK 2023: THE CLERKENING (46 decks)

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