Family Law

Jurisdiction & Grounds Recap

1
 Divorce
Threshold Issues . . .

Subject Matter Jurisdiction

+
Personal Jurisdiction
+
Durational Residency

2
 Divorce Jurisdiction - Recap
Subject Matter Jurisdiction
If either party is domiciled in state
The state has jurisdiction to determine the status of marriage.

Personal Jurisdiction
No PJ
DIVISIBLE Divorce
Cant resolve ISSUES OF PROPERTY, SUPPORT OR CUSTODY
PJ
Traditional Grounds
Long Arm Statute

3
 Durational Residency
Most states also require residency in the state
for a period of time before filing
Ranges 6 weeks - 2 years
Durational residency ensures A CONNECTION
BETWEEN THE PARTIES AND THE STATE
Durational residency requirements have been
upheld as constitutional. See Sosna v. Iowa, 95
S.Ct. 553 (1975)

4
 Grounds
Jurisdictions vary
Pure No Fault
E.g., California
Fault & No Fault
E.g., N.Y.
Common Grounds Include:
o Adultery
o Abandonment or Living Separate & Apart
o Cruelty
o No - Fault

5
 Grounds
Adultery
NEED CLEAR AND POSITIVE PROOF
CLEAR PREPONDERANCE OF THE EVIDENCE
CIRCUMSTANTIAL EVIDENCE ACCEPTABLE
A DISPOSITION TO COMMIT ADULTERY AND THE OPPORTUNITY
TO DO SO
Cruelty
COURSE OF CONDUCT
CRUEL BEHAVIOR
MAKING COHABITATION UNSAFE
ADVERSE HEALTH EFFECT

6
 Grounds
Abandonment or Desertion
BREAKING OFF COHABITATION
WITHOUT JUSTIFICATION OR CONSENT
WITH INTENT TO ABANDON
FOR THE STATUTORY PERIOD (NY 1 YEAR +)
Constructive Desertion
INTOLERABLE CONDUCT BY ONE SPOUSE TOWARD
AN INNOCENT SPOUSE THAT CAUSES THE
INNOCENT SPOUSE TO LEAVE THE MARITAL ABODE
NY WITHOLDING SEX FOR 1+ YEARS DESPITE
REPEATED REQUESTS AND WITHOUT JUSTIFICATION

7
 Defenses
Recrimination
CLEAN HANDS
OFFENSE SUFFICIENT TO BE GROUNDS FOR
DIVORCE
Condonation
FORGIVENESS

Collusion
CONSENT

Connivance
AGREEMENT TO OBTAIN DIVORCE

8
 Financial Consequences
of Dissolution
Property Distribution
&
Maintenance

9
 Financial Consequences
of Divorce

Property Division
Spousal Support (Maintenance, Alimony)
Child Support

10
 No Fault & Financial Consequences
What did Lenore Weitzmans research reveal
about the economic consequences of no fault
divorce?

Negative FINANCIAL IMPACT OF NO FAULT LAWS

ON WOMEN AND CHILDREN
MENS STANDARD OF LIVING RISES
WOMEN AND CHILDREN DECLINE

This research raises questions about what role fault

should play in divorce.

11
 Property distribution

12
 Property
Multi step analysis:
Identification
IS IT PROPERTY?
Classification
MARITAL PROPERTY OR SEPARATE PROPERTY
COMMUNITY PROPERTY V. SEPARATE PROPERTY
Valuation
WHAT IS IT WORTH?
Distribution
HOW ARE WE GOING TO DISTRIBUTE THE
PROPERTY?

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 Distribution
Property Distribution
States jurisdictions have differed in
approach:
Title?
Equal?
Equitable? Or Just?
Presumptive formulas?
Fault?

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 Distribution
Common law approach
What was the title property approach to division
of property?
SPOUSE ENTITLED TO RECEIVE PROPERTY HELD
IN HIS NAME UPON DISSOLUTION
Why does the court in Ferguson reject the title
property approach?
UNFAIR
Does the Ferguson court reach the right result?

15
 Distribution
Community Property
What is a community property approach to
property distribution at dissolution?
MARRIAGE = A COMMUNITY
EACH SPOUSE IS A MEMBER
EQUALLY CONTRIBUTING
PARTNERS EQUALLY OWN CP
PRESUMPTION OF EQUAL DIVISION OF COMMUNITY
PROPERTY

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 Distribution
Equitable Distribution - UMDA
What is equitable distribution as defined by the
1970 UMDA? (p. 575)
NOT NECESSARILY EQUAL DISTRIBUTION
DISTIBUTION SHOULD BE JUST
WITHOUT REGARD TO FAULT
CONSIDERING FACTORS:
CONTRIBUTION OF EACH SPOUSE
VALUE OF PROPERTY
DURATION OF MARRIAGE
ECONOMIC CIRCUMSTANCES OF EACH SPOUSE

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 Distribution
C.P. v. E.D.
How does equitable distribution differ from a
community property approach?
E.D ONLY APPLIES AT DISTRIBUTION
E.D - GREATER JUDICIAL DISCRETION AND LESS
PREDICTABLE

Equal Distribution can take different

approaches:
DUAL Property
DUAL PROPERTY Approach

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 Equitable Distribution
Dual Property
Marital property
Property acquired DURING THE
MARRIAGE
Separate property
Property acquired BEFORE MARRIAGE
Property acquired GIFT, BEQUEST, DEVISE
OR CONSENT
Property acquired IN EXCHANGE FOR
SEPARATE PROPERTY
Property EXCLUDED BY VALID
19 AGREEMENT
 Equitable Distribution
All Property or Hotchpot
What is the Hotchpot approach as
defined by the1998 UMDA (Alternative
A)?
Generally, ALL PROPERTY IS
SUBJECT TO EQUITABLE
DIVISION
Who holds title and when it was
acquired may affect how the property
is distributed.
20
 Distribution-- ALI Approach
How is the ALI approach to equitable
distribution different?
LONG MARRIAGES = RE-CHARACTERIZE A PORTION OF
SEPARATE PROPERTY AS MARITAL PROPERTY
USE OF PRESUMPTIVE MATHEMATICAL FORMULA
EXCEPT IN WRITTEN NOTICE THAT
GIFTS/INHERITANCES TO BE KEPT SEPARATE
CAN DEPART FROM FORMULA IF SUBSTANTIAL
INJUSTICE
What is the rationale of this approach?
Is the E.D. factors test or ALI test more
fair?

21
 Debt
Debt treated like assets
Classify
Marital v. Separate
Value
Distribute

22
 Equitable Distribution
New York
What approach does N.Y. take with regard to
property upon divorce? See Blickstein
MARRIAGE ECONOMIC PARTNERSHIP AND UPON
DISSOLUTION MARITAL PROPERTY SHOULD BE
EQUITABLY DIVIDED
EQUITABLE:
FAIR, JUST AND RIGHT IN THE CIRCUMSTANCES OF
THE FACTS AND CIRCUMSTANCES OR EACH
INDIVIDUAL CASE
NOT EQUAL

23
 Equitable Distribution
New York - DRL 236B(1)(c)
How does N.Y. define marital property?
Marital Property
ACQUIRED DURING MARRIAGE AND BEFORE THE
EXECUTION OF SEPARATION AGREEMENT OR
COMMENCEMENT OF MATRIMONIAL ACTION
BROADLY DEFINED
INCLUDES TANGIBLE AND INTANGIBLE PROPERTY
PRESUMPTION PROPERTY ACQUIRED DURING
MARRIAGE IS MARITAL PROPERTY
BURDEN ON SPOUSE TRYING TO EXCLUDE PROPERTY
FROM MARTIAL KITTY
o TRACING

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 Equitable Distribution
New York DRL 236B(1)(d)
How does NY define separate property?
SP NARROWLY DEFINED:
ACQUIRED BEFORE MARRIAGE
AQUIRED BY BEQUEST, DEVISE OR DECENT
GIFT FROM SOMEONE OTHER THAN SPOUSE
COMPENSATION FOR PERSONAL INJURY
PROPERTY ACQUIRED IN EXCHANGE FOR SEPARATE
PROPERTY
INCREASE IN VALUE, EXCEPT APPRECIATION DUE TO
CONTRIBUTION OF OTHER SPOUSE
WRITTEN PRENUPT OR SEPARATION AGREEMENT

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 Equitable Distribution
New York DRL 236B(5)
Separate property REMAINS SEPARATE
Marital property DISTRIBUTED EQUITABLY
Written agreement CAN ALTER
STATUTORY DISTRIBUTION
__________________________________________
Exceptions

TRANSMUTATION (CHANGE CHARACTER) &

COMMINGLING

26
 E.D. Valuation - N.Y.
N.Y. D.R.L. 236(B)(4)(b)

After classification of property

Property must be valued
Timing
Valuation date within THE DISCRETION OF
THE COURT
Valuation date CAN BE ANYTIME FROM
DATE OF COMMENCEMENT TO DATE OF
TRIAL
oPassive or Active Assets
27 Can be set by stipulation
 Equitable Distribution
Valuation - N.Y.
Different dates can be used for different
assets.
One approach:
ACTIVE asset NEAR TIME OF
COMMENCEMENT
APPRECIATION OR DEPRECIATION DUE TO
SPOUSAL LABOR

PASSIVE asset NEAR TIME OF TRIAL

APPRECIATION OR DEPRECIATION
DUE TO OTHER FORCES (LIKE
MARKET FORCES)
28
 Equitable Distribution
New York DRL 236B(5)(d)
Equitable Distribution Factors
1. Income & property
At time of marriage & commencement of action
2. Duration of marriage & parties age and health
3. Custodial parents need for marital home & effects
4. Loss of inheritance & pension rights upon
dissolution
5. Loss of health insurance benefits
6. Maintenance Award

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 Equitable Distribution
New York DRL 236B(5)(d)
Equitable Distribution Factors
7. Contributions to the acquisition of MP, efforts
and contributions &services as a spouse,
parent, wage earner and homemaker, & to the
career or career potential of the other party.
Enhanced earnings due to license, degree, celebrity
goodwill or career enhancement are not M.P.
However, E.D. the court shall consider the
contributions to the development during the marriage
of the enhanced earning capacity of the other spouse;

30
 Equitable Distribution
New York DRL 236B(5)(d)
8. Liquid or non-liquid character of MP
9. Future financial circumstances
10. Difficulty of evaluating assets or interests
11. Tax consequences
12. Wasteful dissipation
13. Unfair transfer before dissolution
15. Any other factor (just & proper)

31
 Rolando & Julieta
Problem
Property Acquired During Separation
Does existence of a marriage alone impose the
partnership construct?
Or should the spouses be functioning as a couple
even if not living under the same roof?
Premarital Cohabitation Property
Should two different bodies of law should apply in
such a case?

32
 Hypothetical
1. On January 1, Joan files for divorce. On
January 5, Joan, wins a $17 million verdict for
her client in a contingent fee case in which
she is entitled to 35% of any recovery. The
defendant has filed an appeal which is
scheduled to be heard in six months. Joan will
handle the appeal for the plaintiff. Joans
husband claims that Joans contingent fee is
marital property. Is he right?

33
 2. Tom bought his prized Alfa Romeo before his
marriage to Tonya. During Toms marriage to Tonya, in
January 2012 Tom, testing the Alfas limits on a back
country road, has a serious accident. His Alfa is totaled
and Tom suffers chronic injuries leaving him too
disabled to continue his employment. In June 2012,
Tom and Tonya file for divorce. Among their assets are:
(a) a personal injury award Tom received from suing
another driver for causing his car accident; (b) a check
for $45,000 from the Acme Insurance Company, for the
loss of the car; (c) monthly payments for $5,000 from
the Icyou Insurance Co., on a disability insurance
policy; and (d) a universal life insurance policy with a
cash value of $25,000 issued by Acme Insurance Co.,
expiring in October of each year, which is automatically
renewable. Because of Toms current medical
condition, he would not otherwise be able to purchase
life insurance. The premiums on all three policies were
made from Toms earnings during marriage. Which of
these are marital assets? Which separate? Are any not
property at all?
34
 Hypothetical
3. Kim & David married in 2000. In 2005, Kim
inherited $200,000 from her grandmother. Kim
placed the money in a joint bank account. In
2016 the couple seeks a divorce and David
argues that Kims inheritance is marital
property. What result?

35
 Hypothetical
4. Jim and Sandy married in January 1, 2013.
On 5 January 2014, on his way home from work,
on a whim, decided to purchase a lottery ticket.
On January 7, Jim won $100 million in the lottery
choosing the pay over 20 years option. On
January 30, Sandy files for divorce and claims
the winnings are marital property. Jim asserts
that the winnings are separate property. What
result? What if Jim purchased the lottery ticket
on Feb. 1with money earned on January 31?

36
 5. After filing her petition to dissolve her 15-
year marriage with Ronald, Rhonda learns that
she is among a group of employees to be
released in a corporate downsizing. The
company provides released employees
severance pay equal to one months salary for
each year of employment at the company.
Rhonda therefore receives ten months salary or
$60,000. Rhonda, a hard worker, had also
accumulated a months worth of unused
vacation time during her years of employment,
worth another $4,000. Ronald claims all
$64,000 is marital property, Rhonda claims it is
all separate property. What is the correct
37
result?
 Hypothetical
6. Sam and Sally were married on March 1,
2000. In April 2008, Sally received a gift of
$100,000 from her recently departed Aunt. Sally
immediately took $25,000 of the money and
placed it in a separate bank account in her
name only. She used the remaining funds to
purchase a boat which was titled in Sam and
Sallys names. On January 1, 2012, Sam filed for
divorce claiming the $25,000 account and boat
are marital property. Sally claims they are both
separate property. What result?

38
 7. Sean, a self-employed entrepreneur, & Lisa
were married in 2000. Lisa stayed home and
raised the couples 2 children. In January 2015,
Sean moved out of the marital home and
moved in with his 19 year old secretary. In May
2015, Lisa filed for divorce. Lisa would like a
greater share of the marital assets because the
break-up of the marriage was solely Seans
fault. On what grounds can Lisa seek a
divorce?
How will a court respond to Lisas arguments about
the distribution of assets?
What if Lisa learns that Sean has been making
financial gifts to his secretary that total $100,000?
39
 Food for Thought. . .
How far can you reasonably stretch the
definition of marital property or marital debt?
Is elective cosmetic surgery marital property/debt?
Is a donated kidney?
Breast implants (Isaacson v. Isaacson, 777 N.W.2d 886); kidney
(Battista v. Battista)
Is elective cosmetic surgery the dissipation of marital
assets?
Morgan v. Morgan, 2007 WL 2812600
Virtual Property?
E.g., Facebook, Twitter, Virtual goods (Planet Calypso)

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 Spousal support

41
 Spousal Support
Spousal support (also called alimony or
maintenance) looks forward.
_________________________________________
_________________________________________
_________________________________________

42
 Spousal Support
What rationales are there for spousal
support? Mani, Blickstein, 472 NYS2d 110
(2d Dept. 1984)
_____________________________
______________________________
Which rationale do find most
convincing?

43
 Maintenance - UMDA
(a) When should maintenance be awarded?
_____________________________________
_____________________________________
(b)How much maintenance should be awarded?
_____________________________________
_____________________________________
Considering factors:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
44
 Spousal Support
What role for fault? Why? See Mani,
p. 582
According to Mani:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________

45
 Limiting Support
Is Maintenance outdated? Still needed?

Recent state efforts to limit or bar spousal

support
Massachusetts Alimony Reform Act of 2011
_______________________________

Types of Support
Temporary
Permanent
Rehabilitative

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 Temporary Spousal Support
Pendente lite
Support for __________________
But ____________________
Duration ____________________
While __________________________________
But _____________________________
Usually for:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________

47
 Non-Durational or Permanent Spousal
Support
______________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________
_____________________________________

48
 Rehabilitative Spousal Support
Many courts ____________________
Many courts have a presumption or preference for
______________________________________:
Designed to ____________________________
Limited to __________________________________
To encourage ________________________________
_____________________________________________

49
 Hypothetical
8. Joan ( a schoolteacher) and Michael are married and have
one child. When the child is two years old, Michael loses his
job in a corporate downsizing. After unsuccessfully
seeking work, Michael opens a consulting business that
never does well. Joan is also the primary caretaker of their
child and performs the majority of domestic chores. When
their child is 8, the parties file for divorce. At this time
Joans income is $78,000 annually, while Michaels income
averages between $20,000 and $30,000. Joan seeks spousal
maintenance from Michael, arguing that her role as
homemaker and primary caretaker has burdened her
earning capacity, and she is entitled to payments from her
to compensate her for that loss. What result under the
UMDA? Can Michael receive maintenance?

50
 Problem, p. 593
Brian and Ruth
What result under the UMDA?

51
 N.Y.
Spousal Support

52
 Temporary Spousal Support
N.Y. D.R.L. 236(B)(5-a)
Unless the parties have an agreement
the court shall AWARD TEMPORARY
MAINTANENCE
Using THE REQUIRED FORMULA
Up to the income cap
$178K (payor income)
Court can deviate FROM FORMULA IF
AWARD WOULD BE UNJUST OR
INAPPROPRIATE (USING FACTORS)
53
 Temporary Spousal Support
N.Y. D.R.L. 236(B)(5)(c)
Alternative #1
Child Support will be paid &
Payor is the Non-Custodial Parent

A. 20% OF PAYORS INCOME 25% OF PAYEES

INCOME
B. (PAYORS INCOME + PAYEES INCOME) 40%
C. SUBTRACT PAYEES INCOME FROM (B)
ABOVE
D. SELECT LOWER OF AMOUNT (A OR C)

54 Note: Payor SPOUSE WITH THE HIGHER

INCOME
 N.Y. Temp. Spousal Support Alternative #1
C.S. & Payor is Noncustodial Parent
Payor Income = $50,000
Payee Income = $20,000

A. $50K (PAYOR INCOME) X 20% =$10K

B. 20K (PAYEE) X 25% =$5K
C. 10K-5K=5K

55
 Temporary Spousal Support
N.Y. D.R.L. 236(B)(5)(c)
Alternative #2
Child Support will not be paid or
Payor is the Custodial Parent

A. 30% OF PAYORS INCOME 20% OF PAYEES

INCOME
B. (PAYORS INCOME + PAYEES INCOME) 40%
C. SUBTRACT PAYEES INCOME FROM B.
D. SELECT LOWER OF AMOUNTS (A OR C)

Note: Payor SPOUSE WITH THE HIGHER

56
INCOME
 N.Y. Temp. Spousal Support Alternative #2
No C.S. or Payor is Custodial Parent
Payor Income = $50,000
Payee Income = $20,000

_____________________________________
_______________________________________
_______________________________________
_________________________________________

57
 N.Y. Temp. Spousal Support
Over the Income Cap
If payors income is over income cap
Currently $175,000
Court must perform maintenance calculations up
to the cap
Any additional maintenance is discretionary
Court must consider factors
Reasons for additional award must appear / be
stated on the record or in writing

58
 N.Y. D.R.L. 236(B) (5)(h) Some Support Factors
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties,
(c) the need of one party to incur education or training expenses;
(e) wasteful dissipation of marital property;
(f) a pre-marital joint household or a pre-divorce separate household;
(g) acts that have inhibited a party's earning capacity, including DV;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children, disabled adult children, elderly parents that
inhibits earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the
marriage;
(l) the reduced earning capacity as a result of having
forgone/delayed education, employment opportunities during the
marriage;
(o) any other factor the court shall expressly find just and proper.
59
 N.Y. D.R.L. 236(B)(6)
Post Divorce Maintenance (Eff. 1/23/16)
Upon application for support, THE COURT USES
SAME FORMULA USED FOR TEMPORARY
MAINTENANCE UP TO INCOME CAP - $178K OF
PAYORS INCOME
Right to OPT-OUT
Income above the income cap
JUDICIAL DISCRETION AS TO WHETHER ADDITIONAL
MAINTANENCE MAY BE AWARDED
Court must consider factors
SAME FACTORS AS IN TEMPORARY MAINTANENCE PLUS
EQUITABLE DISTRIBUTION OF PROPERTY
CONTRIBUTIONS AND SERVICES OF SPOUSES
REASONS FOR ADDITIONAL AWARD MUST APPEAR ON THE
60
RECORD IN WRITING
 N.Y. D.R.L. 236(B)(6)
Post Divorce Maintenance Duration (Advisory)

Length of the Percent of length for which

marriage maintenance may be payable

0 up to and including 15 15%--30%

years
More than 15 up to and 30%--40%
including 20 years
More than 20 years 35%--50%

Examples:
15 YR MARRIAGE 2.25 4.5 YEARS OF MAINTANENCE
20 YRS OF MARRIAGE
61
 Winding Up a Marriage
Property & Support

62
 Winding up A Marriage
Wolf v. Wolf
Why is there an issue about how to handle the
disputed property in Wolf?
What was the source of the property?
When was the property acquired?
Was the property M.P. or S.P.?
Did the property increase in value during the
marriage? By whose efforts?
What relevance, if any would this fact have on distribution
upon divorce?
What kind of spousal support does the spouse in
Wolfe receive? Why?

63
 Appreciation of Separate
Property
Separate Property appreciated in
value during marriage
C.P. States
Appreciation = S.P (Most CP states)
E.D. States
INCREASE in value due to marital efforts
or the active role of either spouse MP
Not just market forces
See Price v Price

64
 Problem, p. 601
Deborah & Dennis
Should the appellate court reverse the property
division and support determination? Why?

65
 9. Alice and Jerry marry in 2012. During the
marriage, Alice attends school, pursues
hobbies and keeps house, while Jerry works
for a computer software company. In the
evenings, Jerry works at home designing
computer programs. In 2014 Jerry comes up
with a new program which he markets
himself though Softsell, a company he creates
for the purpose. Jerry is the sole proprietor
of Softsell, which he started with savings
accumulated since 2012. The program is an
immense success, and by 2015, Softsell is
worth $2 million. In 2016, it is worth $10
million. In 2016, Alice files for divorce. Alice
has never been interested in computers and
has never participated in Softsell in any way.
How would the Softsell Company be
66
classified in a NY divorce?
 Would it matter whether the capital Jerry put into
Softsell came from a gift from his mother, rather
than savings accumulated during the marriage?
Should it?

67
 Changing Circumstances
Paul v. Paul
Is a property award modifiable?
No! Property awards are final
Are support awards modifiable?
What basis for modification was at issue in Paul v.
Paul?
What does the result in the case turn on?
Should courts treat cohabitation the same as or
differently from remarriage? Explain

68
 What happens to maintenance judgment if . . .
1. Mr. Payor passes away from a sudden heart attack?
2. If Payee remarries?
3. If Payee is awarded rehabilitative maintenance for 6 years
and in 5 years she is nowhere near completion of her
degree?
4. If Payors business is a Madoff victim, it collapses, and he is
unable to find any similar positions? What if his wealth
increases tenfold?
5. Post-divorce Payee starts a very successful & lucrative
business of her own?
6. Payor walks away from his business and gets a job working at
Cheeburger Cheeburger for $7 per hour ? NO MOD
7. If Payor remarries? NO MOD

69
 Maintenance - Modification
Maintenance awards are not permanent
Support typically ends upon
Death of payee or payor
Remarriage of payee
Cohabitation

Maintenance awards are modifiable

Substantial change in circumstances

70
 N.Y. D.R.L. 236(B)(9)
Post Divorce Maintenance Changing Circumstances
Enacting new post-divorce maintenance
provisions does not represent a change in
circumstances triggering a right to modification
New formulas dont apply to awards or agreements
existing before effective date of formulas.
Court may modify:
Orders/Judgment if:
The payee is unable to be self supporting OR
A substantial change in circumstances
Retirement of payor if retirement results in a substantial
change in circumstances
Agreements
71 Extreme Hardships
 10. Virginia & Richard were married in New York
in 1989; they have 4 children and divorced in
2014. Richard was ordered to pay $640 per
month in non-durational spousal support to
Virginia.
A. What if, in 2015, Virginia and her children moved in
with Rachel to save money on rent. What result?
B. What if, in 2015, Virginia, her children, and Thomas
moved into together, stating on the lease Virginia
was husband and wife?
C. What if, in 2015, Virginia married Thomas. Richard
wants to stop paying support. What result?
D. What if, in 2015 Richard owned Virginia $10,000 in
back maintenance before she married Thomas?
72
 Hypothetical
11. In February 2016, Dean & Mary entered into a
stipulation of settlement which provided, inter alia, that
plaintiff shall pay to the defendant the sum of $125
per week maintenance for a period of 5 years, which
obligation shall be absolute. The terms of the
stipulation were incorporated into, but not merged
with, the judgment of divorce. Assume one year later,
Dean will move to reduce the maintenance payments,
asserting that at the time the parties entered into the
stipulation, Dean was earning over $100,000 a year and
Mary was unemployed. At the time of the application
for a downward modification, Dean alleged that his
income had been reduced to an estimated $35,000 a
year due to an involuntary change of employment,
whereas Mary had earned a master's degree and was
employed full time at a salary equivalent to Dean's
annual income. What result in N.Y.?
73
 Special Problems
The Marital Home
Often significant marital asset
Treatment may be affected by custody
Treatment can vary and may include:
Sold and equitably divided
Distributed to one spouse and offset
Exclusive use provided to one spouse
CUSTODIAL PARENT
Impact on women & children
Lenore Weitzman

74
 The Marital Home: War of the Roses?
Ruth Padawer, Chana and Simon Love Their House, but . . . They Loathe Each Other, NY
Times 10/5/09

Simon Taub Chana Taub

75
 Bankruptcy
Howard v. Howard
Are property and support awards dischargeable
in bankruptcy after 2005 BAPCPA?
Chapter 7
Alimony/support nondischargable
Property distribution - nondischargable
Chapter 13 (Reorganization)
Alimony/support nondischargable
Property distribution - dischargable

What is the issue in Howard?

______________________________________
______________________________________
______________________________________.

76 What result? Explain.