Matrimonial & Family Law Flashcards

Under New York's equitable distribution law (DRL 236(B)(5)), how must a court divide marital property?

Answer: Equitably, considering the statutory factors; the result is fair under the circumstances but not necessarily equal

DRL 236(B)(5) requires an equitable distribution of marital property considering the statutory factors (including the duration of the marriage, each party's income and property, contributions as spouse, parent and homemaker, and loss of inheritance or pension rights). 'Equitable' means fair, not necessarily equal; marital fault is generally not considered unless egregious.

A New York court orders a parent to pay child support. The obligor parent later becomes voluntarily unemployed. How will the court likely treat the obligor's income for support purposes?

Answer: The court will impute income based on earning capacity

New York courts may impute income to a voluntarily unemployed or underemployed parent based on that parent's earning capacity to prevent support evasion.

In a New York divorce proceeding, the court appoints an attorney for the child (AFC) in a custody dispute. The AFC's primary obligation is to:

Answer: Advocate for the child's expressed wishes unless doing so would be harmful

Under 22 NYCRR Part 7, the attorney for the child is required to zealously advocate for the child's expressed wishes, substituting the AFC's judgment only when the child lacks capacity or advocacy would cause serious harm.

Which of the following would most likely constitute 'cruel and inhuman treatment' sufficient for a fault divorce in New York?

Answer: A pattern of physical or emotional abuse that endangers physical or mental well-being

Cruel and inhuman treatment requires a course of conduct that endangers the physical or mental well-being of the complaining spouse, making continued cohabitation unsafe or improper.

Under the CSSA (DRL 240(1-b)), which of the following is NOT a mandatory add-on to basic child support?

Answer: Educational expenses for private school

Child care expenses for a custodial parent who works or is seeking work (DRL 240(1-b)(c)(4)), the child's health insurance and unreimbursed health care expenses (c)(5) are mandatory add-ons prorated between the parents. Educational expenses such as private school tuition are discretionary add-ons that the court may award under (c)(7).

A New York divorce judgment is silent on the disposition of the marital home. What is the most likely result regarding the property?

Answer: The property converts to tenancy in common between the former spouses

A judgment of divorce terminates a tenancy by the entirety and the former spouses hold as tenants in common (EPTL 6-2.2(c)), subject to a partition action or later agreement.

Under Social Services Law 384-b, an authorized agency must generally file a petition to terminate parental rights when a child has been in foster care for:

Answer: 15 of the most recent 22 months

Under SSL 384-b(3)(l), the agency must file a termination of parental rights petition when the child has been in foster care for 15 of the most recent 22 months, subject to statutory exceptions. The requirement derives from the federal Adoption and Safe Families Act. Termination is determined in a separate proceeding, not in the neglect case itself.