Economic Issues that Surround a Marital Termination

Question 1

Maintenance (called alimony elsewhere)

Answer 1

Statute itemizes 19 factors that the court should consider

• some factors: health and age of spouses, earning capacity, education, time needed to gain skills or experience, time out of work, desire to return to school, one is custodian of minor, caretaker to another family member, separate property ownership, marital misconduct, and any relevant factor
• essentially just use facts

While case is pending case ask for temporary maintenance designed to preserve the status quo

Question 2

Counsel fees

Answer 2

economically poorer spouse is entitled to get counsel fees

Question 3

Factors for continuing payments

Answer 3

(1) modification: can petition for change if there is a substantial change in circumstances
- prospective only (future payments)- past-due payments (arrears are not modifiable)
- if based on separation agreement, standard to modify is extreme hardship

(2) termination: ends on specified date in court papers. If none, automatic termination if, death of either party, remarriage of recipient, or recipient lives with another person as if married (can K around these provisions if you want)
(3) enforcement: range of remedies including: taking and auctioning property, attachment to wages, removal of driver’s license or license to practice profession, removal of recreational licenses, contempt of court

Question 4

Property division in NY

Answer 4

Categorize assets then distribute

Categorization:

• Separate property- any asset owned by spouse prior to marriage, any gift or inheritance received by spouse in sole name after date of marriage, property agreed to be separate, personal injury compensation designed to compensate for pain and suffering, and any appreciation of those items unless due to other spouses efforts
• marital property- everything else

Distribution:

• each gets own separate property
• marital assets get distributed by court making equitable determination (can consider any factor, including loss of health insurance, loss of inheritance rights, need of custodial parent to live in home to watch kids,except fault)

ways to distribute:

• in kind
• cash to overcome deficit