NYLE - New York Law NY Matrimonial & Family Law Questions and Answers — Questions and Answers
Question 1: A couple is divorcing in New York. One spouse wishes to use the 'no-fault' ground for divorce. Under Domestic Relations Law § 170(7), what must be alleged under oath regarding the state of the marriage?
- The marriage has been irretrievably broken for one year.
- The spouses have lived separate and apart for six months pursuant to a court order.
- The relationship has broken down irretrievably for a period of at least six months. (Correct answer)
- There are irreconcilable differences with no prospect of reconciliation.
Correct answer: The relationship has broken down irretrievably for a period of at least six months.
New York's no-fault ground for divorce, found in DRL § 170(7), requires one party to state under oath that the relationship between the spouses has broken down irretrievably for a period of at least six months. A one-year period is associated with grounds based on abandonment or living apart pursuant to a separation agreement, not the no-fault ground.
Question 2: When a New York court is making an initial determination of child custody, what is the primary legal standard it must apply?
- The preference of the child, regardless of age.
- Which parent has greater financial resources.
- The parent who was the primary caretaker during the marriage.
- The best interests of the child. (Correct answer)
Correct answer: The best interests of the child.
The controlling standard for all child custody determinations in New York is the 'best interests of the child.' While factors such as who was the primary caretaker, the child's preference (depending on age and maturity), and each parent's stability are considered, they are all subservient to the overarching 'best interests' standard. Financial disparity is typically addressed through child support, not by being the sole determinant of custody.
Question 3: A couple in New York City is getting divorced after a ten-year marriage. They have two children, ages 8 and 10. The non-custodial parent earns $120,000 annually, and the custodial parent earns $80,000 annually. Under the Child Support Standards Act (CSSA), what percentage will be applied to their combined parental income up to the statutory cap to determine the basic child support obligation?
- 17%
- 29%
- 25% (Correct answer)
- 31%
Correct answer: 25%
The Child Support Standards Act (CSSA) sets forth specific percentages of combined parental income to be used for calculating basic child support. For two children, the applicable percentage is 25%. The other percentages listed are for one child (17%), three children (29%), and four children (31%).
Question 4: Which of the following is NOT a required formality for a valid and enforceable prenuptial agreement under New York Domestic Relations Law § 236(B)(3)?
- The agreement must be in writing.
- The agreement must be reviewed by independent legal counsel for each party. (Correct answer)
- The agreement must be subscribed by both parties.
- The agreement must be acknowledged or proven in the manner required to record a deed.
Correct answer: The agreement must be reviewed by independent legal counsel for each party.
DRL § 236(B)(3) requires that a marital agreement be (1) in writing, (2) subscribed by the parties, and (3) acknowledged or proven in the manner required to entitle a deed to be recorded. While having independent legal counsel review the agreement is highly advisable and strengthens its enforceability against challenges of duress or unconscionability, it is not an absolute statutory requirement for the agreement's validity.
Question 5: In a New York divorce action (commenced after January 25, 2016), one spouse earned a medical license during the marriage with the other spouse's financial support and efforts. How does the court treat the licensed spouse's enhanced earning capacity under DRL 236(B)?
- The license is awarded to the non-titled spouse as separate property.
- It is not marital property subject to valuation and distribution, but the court must consider the non-titled spouse's direct and indirect contributions to its development when equitably distributing the other marital property. (Correct answer)
- It is marital property, and its present value is distributed as a distributive award.
- The value of the license is automatically divided 50/50 between the spouses.
Correct answer: It is not marital property subject to valuation and distribution, but the court must consider the non-titled spouse's direct and indirect contributions to its development when equitably distributing the other marital property.
Under DRL 236(B)(5)(d)(7) (as amended by L.2015, c.269, effective January 25, 2016), enhanced earning capacity arising from a license, degree, celebrity goodwill or career enhancement is no longer marital property (superseding O'Brien v. O'Brien). However, the court shall consider the direct or indirect contributions of the other spouse to its development in arriving at an equitable distribution of the remaining marital property.
Question 6: A New York court is determining a post-divorce maintenance award for a spouse after a long-term marriage. Which of the following factors is the court LEAST likely to consider as a primary determinant under the Domestic Relations Law?
- The age and health of the parties.
- The marital fault of either party leading to the divorce. (Correct answer)
- The present and future earning capacity of both parties.
- The standard of living of the parties established during the marriage.
Correct answer: The marital fault of either party leading to the divorce.
While New York law allows for fault-based divorces, marital fault is generally not a factor in determining the amount or duration of post-divorce maintenance, unless the conduct is so egregious that it shocks the conscience of the court. The statutory factors listed in DRL § 236(B)(6)(a) focus on economic considerations, such as the parties' age, health, earning capacity, and the established standard of living, to ensure a fair economic outcome.
