Economic Issues Surrounding Marital Termination

Question 1

When should a client seek temporary maintenance?

Answer 1

When the party is worried about supporting themselves during the claim. If granted, it will preserve the status quo while the case is pending.

Question 2

Must a judge grant the standard formula amount for temporary maintenance?

Answer 2

The standard formula gives the judge a baseline, and the court can adjust that amount in its discretion.

Question 3

After a matrimonial case ends - what should the court consider to determine whether there should be maintenance and how much?

Answer 3

Basically anything that seems relevant - use the facts.

health and age of spouses, earning capacity and education, presence of small children, need to care for another family member, property of each person, fault, misconduct, etc.

Question 4

Who must pay the poorer spouse’s counsel fees?

Answer 4

There is a presumption that the wealthier spouse pays the poorer spouse’s counsel fees.

Question 5

What are the three follow-up considerations for maintenance payments (which are ongoing)?

Answer 5

1. Modification
2. Termination
3. Enforcement

Question 6

When can a maintenance award be modified?

Answer 6

Based on a showing of “substantial change in circumstances” brought by either spouse based on the changed circumstances of either. It is completely discretionary.

Question 7

Can the court modify arrears?

Answer 7

No - arrears are past due debts.

Question 8

What must be shown to modify a maintenance agreement?

Answer 8

Extreme hardship

Question 9

When do maintenance payments terminate?

Answer 9

1. the maintenance award specifies an end date
2. the death of either party or marriage (or co-habitation) of the recipient will terminate the maintenance automatically
   - – but separation agreements can contract around automatic termination events.

Question 10

How can a party enforce a maintenance award (when the other party isn’t paying)?

Answer 10

1. Seize their property
2. Attach their wages
3. Take away their driver’s license
4. Take away their professional license
5. Take away their recreational license
6. Hold them in contempt of court and put them in jail.

Question 11

What system is used in NY to distribute property?

Answer 11

The equitable distribution system, which is based on different categories of assets.

Question 12

What are the three categories of assets to be distributed at the end of a marriage?

Answer 12

1. husband’s separate property
2. wife’s separate property
3. marital property

Question 13

If a spouse owns the asset prior to the marriage - what kind of property is it?

Answer 13

That spouse’s separate property.

Question 14

If a spouse receives a gift or inheritance in their sole name after the date of marriage, what kind of property is it?

Answer 14

That spouse’s separate property.

Question 15

If the parties agree that the property should be separate, is it?

Answer 15

Yes - parties can agree that property will be separate.

Question 16

Personal injury compensation designed to compensate for pain and suffering is what kind of property?

Answer 16

That spouse’s separate property.

Question 17

If separate property appreciates in value during the marriage - how is that increase in value categorized?

Answer 17

It is separate property unless the increase in value is due to the other spouse’s participation or efforts, in which case it’s considered marital property.

Question 18

When is homemaking considered participation/effort that contributes to property appreciating in value?

Answer 18

When the homemaker’s work liberates the other party to work at increased value. That amount will be considered marital property.

Question 19

If property is not considered separate - what is it?

Answer 19

Marital

Question 20

How is marital property divided?

Answer 20

Based on the court’s “equitable determination.”

Question 21

Can the court look to marital fault as a factor in deciding how to divide up marital property?

Answer 21

Not unless the fault is egregious, like domestic violence. Adultery is generally not considered egregious.

Question 22

If a married couple purchases a home, but the deed is in only one of their names - is it considered separate or marital property?

Answer 22

Marital

Question 23

What kinds of factors can a court use to determine how to divide up marital property?

Answer 23

The health, age, earning capacity, education, custodian etc. + whether a spouse is going to lose health insurance or inheritance rights, as well as the need of the custodial parent to live in the marital home.

Question 24

What are the two ways a court could divide up the property?

Answer 24

The court comes up with a percentage and implements it in one of two ways:

1. By ordering a cash award - one spouse writes the other a check, or
2. Distributing the assets in kind - detailed order saying who gets what