In connection with divorces, New York like most states, is an equitable distribution state. Despite this, most people are more familiar with the term “community property,” which is the law of the case in states such as : California, Arizona, Nevada, Texas and a few others. In the latter, martial property (assets accumulated during the marriage) is divided equally between the spouses. In equitable distribution states, marital assets may or may not be divided equally, but rather the division is based upon what the Court deems most fair. In other words, “equitable” may not mean “equal” in all cases.
So how does a Court determine what is equitable? In accordance with New York Domestic Relations Law 236 B(5)(d), a court will consider certain enumerated factors as follows:
(1) the income and property of each party at the time of the marriage and at the time the action is commenced;
(2) the duration of the marriage and the age and healthy of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as the date of dissolution;
(5) the loss of health insurance benefits upon dissolution of the marriage;
(6) any award of maintenance under subdivision six of this part;
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(8) the liquid or non-liquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(14) any other factor which the court shall expressly find to be just and proper.
While the above list is not exhaustive, it clearly demonstrates the multitude of factors considered by a Court when determining a division of the assets. At the same time, the list is a useful roadmap in assisting each party in preparing his/her arguments, obtaining the necessary documents, and providing evidence to the Court.
While in long term marriages, equitable distribution is often equal, the litigants are still required to set forth their case pursuant to the above factors. This can be an arduous task, requiring much time and legal expense. Thus, it is always better to provide your attorney with all information necessary in order to explore all reasonable avenues of settlement, so that “equitable” can be as “equal” as possible under the circumstances.