NYLE Matrimonial & Family Law 3 — Questions and Answers
Question 1: A spouse seeking maintenance in New York pursuant to DRL §236(B)(6) files after January 25, 2016. Which formula does the court first apply?
- A purely discretionary balancing of 20 statutory factors
- The post-2016 advisory guideline formula based on income differential (Correct answer)
- The federal tax deduction method for the payor
- The CSSA percentage schedule
Correct answer: The post-2016 advisory guideline formula based on income differential
The 2015 maintenance reform law effective January 25, 2016 created an advisory guideline formula using the income differential between spouses to calculate post-divorce maintenance.
Question 2: Under New York law, which ground for divorce does NOT require proof of fault?
- Cruel and inhuman treatment
- Abandonment for one or more years
- Irretrievable breakdown of the marriage for at least six months (Correct answer)
- Adultery
Correct answer: Irretrievable breakdown of the marriage for at least six months
The irretrievable breakdown ground, added in 2010, is New York's no-fault divorce ground and requires only that one spouse state the marriage has broken down for at least six months.
Question 3: In New York, the passive appreciation of separate property during the marriage is generally:
- Treated as marital property subject to equitable distribution
- Remains separate property not subject to equitable distribution (Correct answer)
- Split 50/50 between the spouses
- Considered income for maintenance purposes only
Correct answer: Remains separate property not subject to equitable distribution
Under DRL §236(B)(1)(d)(3), passive appreciation—growth due to market forces rather than spousal effort—of separate property remains separate property.
Question 4: Which New York court has exclusive original jurisdiction over adoptions?
- Supreme Court only
- Family Court and Surrogate's Court (Correct answer)
- Family Court only
- Supreme Court and Family Court concurrently
Correct answer: Family Court and Surrogate's Court
Jurisdiction over adoptions in New York is shared between Family Court and Surrogate's Court under the Domestic Relations Law.
Question 5: A mother relocates with the parties' child to another state without the father's consent or court approval. Under New York law, the father's most immediate remedy is to:
- File a petition in the destination state immediately
- File a violation petition and seek an order to show cause in New York (Correct answer)
- Wait six months, then seek modification
- File a federal Parental Kidnapping Prevention Act complaint directly
Correct answer: File a violation petition and seek an order to show cause in New York
The father should file a violation petition and seek an emergency order to show cause in New York, which likely retains jurisdiction under the UCCJEA.
Question 6: Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) as adopted in New York, 'home state' jurisdiction is based on the child living in the state for:
- 30 days immediately before commencement of the proceeding
- 3 months immediately before commencement of the proceeding
- 6 months immediately before commencement of the proceeding (Correct answer)
- 1 year immediately before commencement of the proceeding
Correct answer: 6 months immediately before commencement of the proceeding
The UCCJEA defines home state as the state in which the child lived with a parent for at least six consecutive months immediately before the proceeding.
Question 7: In a New York divorce, the enhanced earnings capacity of a professional license earned during the marriage is treated as:
- Separate property because it belongs to the licensed spouse personally
- Marital property subject to equitable distribution (Correct answer)
- Income only, relevant to maintenance but not distribution
- Not cognizable under New York law
Correct answer: Marital property subject to equitable distribution
Under O'Brien v. O'Brien, New York uniquely treats a professional license obtained during the marriage as marital property subject to equitable distribution.
NYLE Matrimonial & Family Law 3
A spouse seeking maintenance in New York pursuant to DRL §236(B)(6) files after January 25, 2016.
Which formula does the court first apply?