Indidents of Marrital Dissolution Flashcards

You may prefer our related Brainscape-certified flashcards:
0
Q

Separate Property Includes

A
  1. acquired before marriage;
  2. Compensation for personal injuries
  3. acquired in exchange for separate property EXCEPT where appreciation due to contributions of other spouse.
  4. separate property in written agreement of the parties;
  5. gifts to one spouse
  6. property received by bequest or devise
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
1
Q

Equitable Distribution - In general

A

available on granting of divorce, annulment, or declaration of nullity

“equitable” does not mean equal.

distinguishes between Marital property and Separate property. Separate property is not subject to equitable distribution.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Marital Property

A
property acquired during the marriage 
by either spouse
prior to separation agreement or commencement of divorce
regardless of form title is held 
except as provided in an agreement.

Subject to equitable distribution based on equities involved.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Marital Property - Pension Benefits

A

Matured - accrued from employment after marriage is marital property.

Unmatured Vested rights in noncontributory pension plan -
marital property if acquired between date of marriage and commencement of matrimonial action.

Court may order equitable portion of the PRESENT VALUE of pension

OR provide ON MATURITY recipient pay part of each payment received

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Marital Property - Professional degrees and licenses

A

enhanced earning capacity
obtained during marriage are a marital asset subject to ED

turns on when work necessary to acquire it is complete
rather than when awarded.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Marital Property: Professional Practice

A

value of a substantial practice is subject to equitable distribution.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Marital Property: Artistic and Athletic Skills

A

skills with measurable value are marital assets

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Marital Property: Family Gifts and Bequests

A

given to both spouses [wedding gift] is marital property.

inherited or gifted property placed in joint account,
used to purchase joint assets,
funds are commingled and are marital property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Separate Property defined

A

remains separate

not subject to equitable distribution.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Temporary alimony

A

can order despite parties residing in same abode.

order not dependent on showing reasonable probability of success.
only necessity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Death of a spouse prior to entry of judgement.

What effect?

A

acton abates

surviving spouse not entitled to equitable distribution.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Marital Property: Joint Bank Accounts

A

rebuttably presumed each has undivided one-half interest in account.

overcome by evidence that account was titled jointly as a convenience no intent to creating a beneficial interest AND
funds originated solely fro separate property of spouse claiming separate interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Property given by parents to both spouses

A

Is marital property, not separate property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Inherited or gifted property placed in a joint account and used to purchase a joint asset.

A

funds are commingled and become marital property.

Particularly where claim arises years after funds were commingled.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Factors Affecting Distribution (14)

A
  1. Income & property of parties at time of marriage and commencement of action.
  2. Marital duration, age and health of parties
  3. custodial parents need to occupy residence and use effects.
  4. Loss of pension or inheritance rights
  5. loss of health insurance benefits
  6. Any maintenance award
  7. equitable claims of direct or indirect contribution to acquisition of marital property by non-title holding spouse
  8. Liquid or non-liquid character of all marital property.
  9. future financial circumstances of each party
  10. Impossibility of evaluating an asset or interest in a business and desirability of interest remaining intact and free from interference.
  11. tax consequences
  12. wasteful dissipation by either spouse
  13. transfers or encumbrances made in contemplation of action.
  14. any other just and proper considerations
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Courts Discretion in determining an equitable distribution of marital property.

A

The court must consider 14 factors but
accord them any weight appropriate,
absent an abuse of discretion. [NYDRL 236(B)(5)(d)]

16
Q

Consideration of the income and property of the parties at the time of the marriage and at the commencement of the action.

A

used as evidence of earning capacity of the parties.

spouse with greater earning capacity may need lesser share of marital property for future security.
Same with spouse with extensive separate property holdings

17
Q

Needs of the custodial parent to the marital residence and to use or ownership of the household effects.

A

Court decides questions of title and occupancy
without regard to title
unless the home is genuinely separate property.

can grant exclusive occupancy to the custodial parent and
sale and division of proceeds may be delayed until custodial parent remarries or children are emancipated [Ettinger v Ettinger]

18
Q

Courts consideration of any award of maintenance on equitable distribution of marital property.

A

Courts balance awards of maintenance and property distribution.
May give a greater share to spouse making substantial or long term maintenance payments.

19
Q

Courts consideration of the liquidity of marital property.

A

assets not easily sold or sold only at avoidable loss,
will determine assets need not be liquidated.
court will provide equitable distribution of other property
or a distributive award to receive equity.

20
Q

Courts consideration of the difficulty in evaluating any component asset or any interest in a business or the desirability of retaining such an asset or interest intact and free from interference.

A

Courts evaluate business interests and professional practices,
despite difficulty,
and grant distributive awards
instead of share of the business or practice.

21
Q

Just and Proper Considerations of the court in the equitable distribution of property.

A

Fault is not a factor in equitable distribution [Blickstein v Blickstein]
Egregious conduct (attacks) may be considered [Wenzel v Wenzel]
Adultery is not sufficiently egregious to be a factor [Nolan v Nolan]

22
Q

Distributive Awards - When appropriate

A

If ED is appropriate but impractical, or a business interest,
court will make a distributive award to achieve equity

Award may be a lump sum or fixed payments.

Does not include payments treated as income to recipient under the IRS code.

23
Q

Are obligations under a divorce decree alimony or maintenance within the meaning of the Bankruptcy Code’s discharge exception.

A

is a question of Bankruptcy law to decided by the bankruptcy court
on the basis of all relevant facts and circumstances.

24
Q

Availability of Special Relief - Types

A

order health insurance for spouse or children,
life insurance naming other spouse or children as beneficiaries.
(Until the beneficiary remarries or the parties obligation terminates).

pay rents, mortgages, insurance, or other property expenses,
despite both parties live in the same residence.

25
Q

Attorneys Fees in a Matrimonial Action

A

may order payment legal expenses as justice requires.

pendente lite award of attorneys fees prior to final judgement where the petitioning party is unable to proceed otherwise.

Marital fault is considered in award of counsel fees [Jacoby v Jacoby]

order payment of other expenses for accountants, appraisers, and investigations

the court determines necessary to enable the spouse to carry on or defend the action or proceeding.