Equitable Distribution of Marital Property
- What is Equitable Distribution of marital property?
- In New York State what property is determined to be subject to equitable distribution?
- Is my business or professional practice subject to Equitable Distribution in New York?
- Does equitable distribution mean that all marital assets get evenly divided between the spouses?
What is Equitable Distribution of marital property?
It is a method for distributing property acquired by either spouse upon the divorce. The Supreme Court must allocate "equitably" all "marital property" regardless of the manner in which title is held, considering the factors below:
- Each spouse’s income during the marriage
- Income of each spouse at time of commencement of the divorce action
- Property of each spouse when they were married
- Property of each spouse when the divorce action commenced
- During the full timesof the marriage
- Age of both spouses
- Health of each of the parties
- The necessity of the parent who has custody of the child or children to own or live in the marital residence
- The need of the parent who has custody of the children or child to own or have access to household items and effects
- Losing the right of inheritance following the divorce
- Loss of pension rights following the divorce
- An award of any maintenance
Interest in or equitable claims to or indirect or direct contribution regarding the acquiring of marital assets or property on the part of the non-titled spouse including: Joint efforts; Expenditures; Contributions as a spouse, wage earner, parent, homemaker; or to the career potential or career of the other spouse; Non-liquid or liquid nature of the entire marital property; Probable financial conditions of each spouse; The difficulty or impossibility of valuating a business, professional or corporate interest or asset; The desire to retain a business, corporate or professional asset or interest free of any interference or claim by the other spouse; The consequences of taxes to each of the spouses; Either party wastefully dissipating assets; Any type of encumbrance or transfer done in the absence of fair considerations in contemplation of a marital or divorce action; And any additional factors that the Court expressly finds to the proper and just.
What property is included in equitable distribution in New York?
All property of either or both spouses acquired during the marriage, but before signing a separation agreement, and before commencement of a divorce or matrimonial action, regardless of the form title is held.
Not included is property which is named in an agreement in writing. Not included is “separate property,” the definition of which is that property obtained prior to the marriage, acquired by descent, bequest, gift or devise from an individual who is not the spouse; personal injury compensation; any property obtained from the value increase or exchange of separate or distinct property; property which is described or defines as distinct or separate property pursuant to agreement in writing of the parties. However, property obtained in exchange or separate or distinct property or the increase in value of that property is considered as marital property and subjected to equitable distribution if it is determined that the increase in value is in part an indirect or direct result of efforts or contributions by the other party.
Is my business or professional practice subject to Equitable Distribution in New York?
Yes, as long as it is attained during the time of the marriage. Professional performance, businesses, and increased capacity for earnings attributable to the attainment of a career, or professional license, educational degree, profession or license is considered "property" subject to and determined as equitable distribution upon a divorce in New York.
Does equitable distribution mean that all marital assets get evenly divided between the souses?
No, the term “equitable” is not the same as “equal.” Marital property must be distributed equitably between the spouses, considering the circumstances of the case and of each spouse.