Term
| statement of client's rights and responsibilities |
|
Definition
| -always make them sign first time they visit |
|
|
Term
|
Definition
-must be in writing (verbal is unethical and unenforceable
-specify nature and scope of representation
-ambiguity interpreted in favor of client
-NO nonrefundable (unethical)
-minimum fee is OK |
|
|
Term
|
Definition
| -NOT allowed for divorce (unethical) |
|
|
Term
|
Definition
| -can take security interest in lieu of immediate payment, but need court permission and must give notice of that option in retainer agreement |
|
|
Term
| withdrawal from representation |
|
Definition
-nonpayment is proper reason
-NO prior client consent
-if no litigation pending: just need writing
-if litigation pending: must seek court permission |
|
|
Term
|
Definition
-cannot represent both sides of a divorce at any stage
-cannot represent spouse of existing client
-representing spouse of former client depends on how closely related the subject matter (e.g., drinking) and remoteness in time |
|
|
Term
|
Definition
-can get out of marriage even against other spouse's will (irreconcilable differences)
-every state has it EXCEPT NY |
|
|
Term
| grounds for divorce (DRL 170) |
|
Definition
-cruel and inhumane treatment
-abandonment
-imprisonment
-adultery
-living apart pursuant to separation judgment
-living apart pursuant to separation agreement
-irretrievable breakdown of marriage |
|
|
Term
| grounds: cruel and inhumane treatment |
|
Definition
-treatment endangers P's physical or mental well-being so as to render continued cohabitation unsafe or improper
-fault ground
-requires showing of pattern or serious misconduct
-long-term marriages (generally 10 years) have higher standard of proof
-looks at conduct and impact of the conduct
-defense: ONLY 5 yr SOL |
|
|
Term
|
Definition
-P must prove D abandoned P continuously for more than 1 year and intention not to return without P's consent and without justification
-physical; sexual; or constructive |
|
|
Term
| grounds: physical abandonment |
|
Definition
-refusal to cohabitate; but, living separately while trying to reconcile does NOT count
-intention not to return; continuous for 1 year (NO tacking); lack of consent |
|
|
Term
| grounds: sexual abandonment |
|
Definition
-P must ask and be denied repeatedly for 1 year
-can justify refusal medically |
|
|
Term
| grounds: constructive abandonment |
|
Definition
| -H beating W so she had to leave-->treated as H abandoning despite W leaving |
|
|
Term
|
Definition
-D must be imprisoned for 3 consecutive years during the marriage
-does NOT accrue until the 3 years met
-defense: 5 yr SOL that begins to run upon release
-does NOT apply if married someone already convicted |
|
|
Term
|
Definition
-single act is enough
-sexual intercourse or deviant sexual intercourse (oral, anal, animal, or dead body) w/ someone other than spouse |
|
|
Term
| grounds: adultery defenses |
|
Definition
-procurement (consent): open marriage or agent of spouse seduces
-condemnation (forgiveness): express forgiveness or implied by living and engaging in sex with
-recrimination: both commit it and prove other's in court-->must stay together |
|
|
Term
| grounds: adultery witness competency |
|
Definition
-spouse cannot testify to establish adultery, even if witnessed firsthand
-work around: use cruel and inhumane |
|
|
Term
| grounds: living apart pursuant to judgment of separation |
|
Definition
-still have to use fault ground to get the judgment
-rare nowadays; just used for strategy
-sue for separation, then after 1 year of living apart file for divorce
-either party can file for divorce after 1 year
-martial relationship still in tact until divorce (e.g., adultery still in play); no distribution from judgment of separation |
|
|
Term
| grounds: living apart pursuant to separation agreement |
|
Definition
-P can get divorce after living apart for 1 year following execution of written separation agreement that is signed and acknowledged by both parties
-parties must substantially perform obligations under the K
-bilateral no fault
-cannot cohabitate after sign K
-K should cover everything (e.g., custody, maintenance, property division) |
|
|
Term
| divisible divorce doctrine |
|
Definition
-marriage goes where either spouse is domiciled
-a spouse can become bona fide resident of a no fault state and get divorce there and NY will recognize-->special proceeding in NY after a default in such a case to decide distribution |
|
|
Term
| grounds: irretrievable breakdown |
|
Definition
-unilateral no fault
-can say I want a divorce after 6 month period and all ancillary issues have been resolved (e.g., custody, maintenance) |
|
|
Term
|
Definition
-best interest of the child (undefined but looks at totality of circumstances)
-but, DV is now a statutory factor
-neither parent has presumptive right to custody |
|
|
Term
| custody: factors (where applicable, need to affect parenting) |
|
Definition
-historic primary care giver
-home environment
-mental and emotional health and stability: both parents (theirs) and kids (how well taken care of)
-ability to promote intellectual development (investigate w/ teachers)
-ability to promote child's emotional stability
-alcohol and drug abuse: affects parenting (active addiction likely does); look at what's being done (e.g., clean piss after rehab); smoking needs to harm child (e.g., indoors)
-preference of child: not decisive, but more so as child gets more mature/older
-abuse and neglect (heavily weighted)
-DV: statutory factor but weight not statutory
-willingness/ability to foster relationship w/ other parent: weighed heavily; inability raises presumption of unfit; affirmative duty to foster; shown w/ alienation/disparagement, false allegations of abuse, and interference w/ access
-marital misconduct/moral character: ONLY if nexus to parenting
-separation of siblings
-religion: courts can't say it unless it's a situation like no doctors, snakehandlers, etc.
-age and health of parent
-intellectual development (e.g., late to school, unprepared)
-value judgments (e.g., home schooling-->data available)
-disregarding court orders
-involving kids in litigation
-obsessive medical treatment |
|
|
Term
|
Definition
-non-custodial parent will have visitation absent really good reason not to; presumption that relationship w/ both parents is in best interest
-only denied w/ showing of potential harm to child (e.g., physical abuse, drunk driving w/ child, alienation)
-supervised visitation: can be used to address problems as well
-therapeutic access: court can order visitations to include therapy
-incarceration: can still get visitation if relationship prior to lock up; can make imprisoned parent pay for trips if other parent indigent |
|
|
Term
|
Definition
-no designation of custodial and non; distinction between physical custody (residence) and legal custody (decision-making)
-most arise out of mutual agreement
-parents must agree on decision-making
-zone of authority: divides decision-making responsibilities |
|
|
Term
|
Definition
-custodial parent cannot unilaterally decide to move
-court decides on best interest showing |
|
|
Term
| custody: procedural issues |
|
Definition
-must have trial to satisfy due process
-3d lawyer assigned to rep child; advocates for child's wants and if goes against must notify court
-Lincoln hearing: in camera review w/ child and judge (NO parents) after proof is in; sealed transcript but if child brings up new issues parties must be able to address |
|
|
Term
| custody: mental health professionals |
|
Definition
-court can order evaluation at its discretion
-can cross examine them
-they look at parenting capacity, needs of child, and fit
-court cannot delegate decision-making to them though
-they are experts, so Frye/Daubert apply to question methods/qualifications/etc.; can opine but must be limited to discipline/knowledge |
|
|
Term
|
Definition
-property goes to whomever has title
-NY used until 1980
-simple, but led to unfairness |
|
|
Term
|
Definition
-used in 8 or 9 states, including CA
-50/50 distribution; co-management of assets |
|
|
Term
|
Definition
-uses fairness/equity
-NO co-management of assets
-NOT 50/50
-NO rights arise until commencement of divorce action
-NO distribution until dissolution (judgment of separation does NOT lead to distribution)
-3 steps: classification, valuation, distribution |
|
|
Term
|
Definition
-all property divided into 2 categories
-marital property: gets distributed
-separate property: not subject to distribution |
|
|
Term
| classification: marital property |
|
Definition
-any asset acquired by either or both parties between date of marriage and date of commencement of action or execution of valid separation agreement (judgment of separation has NO effect)
-looks at time of acquisition and source of acquisition |
|
|
Term
| classification: marital property-source of acquisition |
|
Definition
-exceptions to marital property/time of acquisition
-inheritance during marriage
-gifts from 3d parties (NOT spouse): wedding rings and gifts but NOT engagement ring
-compensation for personal injuries, including loss of consortium, disability payments (goes by time of acquisition since partially deferred payment), property secured in exchange for separate property, increased value of separate property (except to extent that increase is due to efforts of spouse) |
|
|
Term
| classification: marital property-co-mingle |
|
Definition
| -separate property co-mingled w/ marital is presumed marital unless shown otherwise |
|
|
Term
| classification: marital property-increased value of separate property |
|
Definition
-separate property?
-increased in value during marriage?
-did non-titled spouse directly contribute? if yes, has claim
-any direct contributions by titled spouse? if no, passive increase thus no claim
-did non-titled spouse indirectly/non-economically contribute (e.g., homemaking, raising kids)? if nexus, has claim |
|
|
Term
| classification: marital property-increased value valuation |
|
Definition
-baseline date: date of marriage or date of acquisition
-even de minimis efforts count
-amount proportional to effort |
|
|
Term
| classification: transmutation |
|
Definition
-property acquired by either party during the marriage is considered marital property
-making separate property joint makes it marital
-party that conveyed property gets credit equal to value at conversion in distribution
-rebuttable presumption: can rebut w/ convenience defense (e.g., bank down the street)
-NO prospective transmutation (e.g., put part of inheritance in joint account and later part in sole account) |
|
|
Term
|
Definition
-court must value each marital asset
-burden falls on non-titled spouse who is seeking distribution of that asset
-court's failure is reversible error; party's error constitutes waiver of equitable distribution claim |
|
|
Term
|
Definition
-earliest is commencement; latest is trial
-within that range, courts have discretion
-guideposts: if value fluctuates due to active effort of owner spouse use commencement; if value fluctuates due to passive market forces use trial |
|
|
Term
|
Definition
-value: market value; selling price between ready, willing, and able parties
-public stock: look it up
-cash business: use private investigator
-small business: use financial expert to look at books
-real estate: market comparison, capitalization of earnings (income property), or reproduction cost (cost of building today)
-closely held business: average annual earnings (after expenses, before taxes), capitalization rate (amount it would sell for; percentage of AAAE), excess earnings model (AAAE minus rate of return on net tangible assets times capitalization rate) |
|
|
Term
|
Definition
-NOT 50/50, not even presumption (although often a judge's starting point)
-MUST consider all 13 factors
-MUST be written decision |
|
|
Term
|
Definition
-income and property of both parties at the time of marriage and the time of commencement
-duration of marriage (longer makes it more likely to get 50/50)
-need of custodial parent to own/occupy the marital home (often granted exclusive until kid is 18 then sold and distributed; need to figure out who will pay mortgage)
-loss of inheritance and pension
-any maintenance awards
-contributions as wage earner, spouse, parent, or homemaker to career (or potential) of other party
-liquid or non-liquid character of assets
-probable future earnings (need based)
-desirability of retaining income producing property/business interest
-tax consequences
-wasteful dissipation of marital property (e.g., dropping lots at the track)
-transfer or encumbrance made in contemplation of action
-any other factor the court may deem just (e.g., egregious misconduct like stabbing or raping) |
|
|
Term
| enhanced earning capacity (working spouse/student spouse syndrome) |
|
Definition
-project baseline and topline earnings, put through actuarial formula to get present value, then subtract baseline present value from topline to get enhanced earning capacity
-used to value degrees or licenses
-NO double dipping future earnings: need to include portion between baseline and reasonable compensation |
|
|
Term
|
Definition
| -considered deferred compensation therefore martial property to the extent earned during marriage |
|
|
Term
|
Definition
-contributory: employee and employer contribute each pay period
-noncontributory: employer only makes contributions
-vested: don't lose interest even if you leave employment; usually has certain number of years required
-nonvested: have NOT reached vesting point yet
-matured: just have to retire to get the money; usually have minimum retirement age
-non-matured: have NOT reached retirement age yet
-pay-out status: interest has matured and you retired so plan is paying out benefits
-defined contribution plan: NO guaranteed amount at retirement, employer just agrees to contribute certain amount weekly
-defined benefit plan: employer pays calculated amount monthly after retirement |
|
|
Term
| pensions: coverture fraction |
|
Definition
-used to figure out how much is marital property (classification)
-numerator: number of years titled spouse participated during marriage (DOM to DOC)
-denominator: total number of years from date of entry to DOC |
|
|
Term
|
Definition
-looks at present value at DOC
-determine percent marital property: number of years in plan while married divided by total years of participation |
|
|
Term
| pensions: value-deferred awards |
|
Definition
-non-titled spouse receives share
-determine percent of marital property: number of years in plan during marriage divided by total number of years in plan until retirement (show expected retirement date in separation agreement, etc.)
-then, multiply fraction by monthly payment
-non-titled spouse's attorney needs to secure this award (court order to joint and survivor OR order to get life insurance) |
|
|
Term
| pensions: pay-out options |
|
Definition
-courts can restrict pay-out options (but not after retirement and payments begin)
-maximum allowance: only pays out until death
-joint and survivor annuity: monthly payments are less, but spouse gets them after death |
|
|
Term
|
Definition
-plans cannot be alienated from worker or assigned to anyone else
-problem: locked out spouses in divorce because they're like creditors |
|
|
Term
| pensions: QDRO (qualified domestic relations order) |
|
Definition
-solved ERISA problem
-non-titled spouse (alternate payee) can get at pension if judgment, order, or decree incorporates a settlement
-order must benefit spouse, child, or other dependent
-order must relate to child support, spousal support, or marital property division
-order can incorporate separation agreement
-order may NOT: require plan to pay benefit not obliged to, increase benefits, or add another alternate payee after one designated w/ qualifying order |
|
|
Term
|
Definition
-periodic payments made from one former spouse to the other to assist recipient in meeting reasonable needs
-taxable for recipient; tax deductible for payor
-can be for life or specified term
-terminating events: death of payee or payor; or remarriage of payee; simple cohabitation does NOT terminate but could contract for that
-reasonable needs refers to pre-separation standard of living
-generally, shorter marriage will have shorter maintenance; longer marriage will have longer maintenance |
|
|
Term
| maintenance: calculations |
|
Definition
-W proves amount needed per year to maintain the pre-separation standard of living
-subtract W's salary or earning capacity from that amount
-also factor in income and property of the parties, including ROR on equitable distribution
-also subtract W's other interests (e.g., trusts) |
|
|
Term
|
Definition
-court must issue written decision considering these factors
-property, including distributed marital property
-duration of marriage
-age and health of parties
-present and future earning capacity of parties
-need of a party to incur education/training expenses
-acts by one party inhibiting earning capacity of other (DV)
-ability of the party seeking maintenance to become self-supportive, and the time and training necessary for that
-reduced or lost lifetime earning capacity of party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage
-presence of children of the marriage in the respective homes of the parties (e.g., used to stay home but now needs to work and get child care)
-care of the children or the step-children or disabled adult children/step, elderly parents or in-laws, that has inhibited or continues to inhibit earning capacity
-inability of one party to obtain meaningful employment due to age or absence from workforce (duplicative)
-need to pay for exceptional additional expenses for the child/children, including but not limited to schooling, daycare, and medical treatment (duplicative of child support)
-tax consequences to each party
-equitable distribution of marital property (repeats 1st factor)
-contributions and services of party seeking maintenance as spouse, parent, wage-earner, and homemaker, and to the career or career potential of other party
-wasteful dissipation of marital property
-transfer or encumbrance made in contemplation of matrimonial actions
-loss of health insurance benefits upon divorce and the cost of medical insurance for the parties
-any other factor that the court may deem just and proper |
|
|
Term
| maintenance: retroactivity |
|
Definition
-applies to child support, too
-awards are retroactive back to the date when application for the award was made |
|
|
Term
|
Definition
-obligation to contribute to reasonable needs of the child
-law provides for up to 21 (can negotiate longer e.g., for college) |
|
|
Term
|
Definition
-child support standardization act (CSSA): determines child support based on parental income
-uses numeric formula to determine basic child support obligation (BSCO) |
|
|
Term
| child support: CSSA-BSCO calculation |
|
Definition
-determine combined parental income (CPI)
-multiply CPI by statutory percentage: 17% for 1 kid, 25% for 2, 29% for 3, 31% for 4
-apportion that figure between custodial and non based on proportion that their individual incomes bear to the combined income |
|
|
Term
| child support: CSSA-BSCO add ons |
|
Definition
-reasonable (in context) child care expenses: 1-custodial parent working or engage in education/training likely to lead to employment--mandatory, pro-rated to income; 2-custodial parent seeking employment--discretionary, NOT pro-rated
-reasonable healthcare expenses: refers to those NOT covered by insurance; mandatory; pro-rated; factual determination if actually needed
-educational expenses for college or private school: discretionary; imposed close to time to attend |
|
|
Term
| child support: CSSA-rebuttable presumption |
|
Definition
-BSCO plus add-ons gives you presumed amount
-rebuttable up to 141k of CPI
-factors: financial resources, special needs or aptitudes of kid, standard of living, etc. |
|
|
Term
| child support: CSSA-computing income |
|
Definition
-actual income + discretionary imputed income + mandatory imputed income - deductions
-actual: what's on tax return, net investment income (untaxed), voluntarily deferred income (e.g., voluntary pension), worker's comp, disability, unemployment, SS, veteran's benefits, fellowships and stipends, pensions and retirement, annuities
-discretionary imputed (court pretends): non-income producing property (e.g., painting on the wall), perks and fringe benefits to the extent they reduce expenditures, gifts and services from 3d parties (e.g., dude works for parents and paid in gifts)
-mandatory imputed: imputed earning capacity (e.g., brain surgeon becoming farmer), excess depreciation allowance, excess travel and entertainment
-deductions (subtracted from total above): unreimbursed employee business expenses to the extent they reduced personal expenditures (meals NOT hotels), maintenance to spouse who is NOT party to proceeding, maintenance to party to proceeding if child support adjustment in order or agreement, child support actually paid not in this proceeding, public assistance, NYC/Yonkers income tax |
|
|
Term
| child support: modification |
|
Definition
-modifiable in light of changes in circumstances if pursuant to order
-if K, merges if judge adopts it so modifiable; if no merger, only modifiable in extreme hardship (payor about to become public charge) |
|
|
