Economics of Marital Termination

Question 1

What is alimony called in NY?

Answer 1

Maintenance

Question 2

What is the new law on maintenance in NY (effective Jan. 2016)?

(What are the formulas dependent on?)

Answer 2

Formal, mathematical guidelines on maintenance

(Which formula you use depends on whether there is child support or not!)

Question 3

When can the court diverge from the strict guidelines on maintenance?

Answer 3

1. When wealthier spouse makes over $175k/yr, the guidelines apply only to the $175k; the Ct. has discretion on everything above that.
2. Even where wealthier spouse makes less than $175k, Ct may exercise discretion if it determines that the formulaic amount would be “unjust or improper”

Question 4

What is the general process for Court arriving at proper maintenance amount?

Answer 4

1. Court calculates maintenance
2. Court determines child support
3. Court subtracts child support amount from maintenance amount

Question 5

What are some factors the court considers when making maintenance determinations?

(What is the strategy on the bar exam?)

Answer 5

(List is long! On bar exam, use whatever is given to you in the facts; don’t try to memorize/regurgitate the full list!)

Factors include:

1. Age and health of the parties (e.g., P’s disability may require a higher amount than she would get under the formula)
2. Earning capacity
3. Need for education/training
4. Domestic violence
5. Duration of any pre-marital co-habitation (e.g., It might make sense to include cohabitation period in the calculus of how long they were married)

Question 6

If the court diverges from the statutory maintenance formula, what must it do?

Answer 6

Court must explain it’s reasoning in writing: Must explain the factors used and why it chose to diverge.

(Provides explanation to the parties)

(Provides explanation for potential appellate review)

Question 7

What is the process for “equitable division of property” questions?

Answer 7

1. Go through the fact pattern to highlight all the marital assets AND categorize the assets
2. Distribute the assets, based on the categorization

Question 8

What are the three categories of marital assets?

Answer 8

1. Spouse A’s separate property;
2. Spouse B’s separate property; AND
3. Marital/joint property

Question 9

How do you categorize assets?

Answer 9

Look for separate property FIRST; then what’s left over will probably be marital property

Question 10

What are the five categories of separate spousal property?

Answer 10

1. Assets owned by a spouse PRIOR TO getting married;
2. Any gift or inheritance recieved by one spouse in his/her SOLE NAME even after the marriage;
3. Property the spouses have agreed to be separate;
4. Money from personal injury recovery (i.e., pain and suffering award); AND
5. Appreciation in value on any of the assets in (1)-(4), UNLESS the appreciation was due to “ACTIVE participation and effort” by one of the spouses (e.g., Harry works a lot in his restaurant to improve its value while he’s married - any increase is marital!) (N.B. Homemaking IS participation and effort because it allows Harry to work so much!)

Question 11

How do you divide up marital assets?

Answer 11

Court makes a discretionary determination based on factors (focus on the facts of the case)