Articles Posted in Equitable Distribution

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During a divorce in New York, there are a number of subjective steps that may be taken to pursue the best interests of a specific party. However, at the same time, the presence of the New YorkDomestic Relations Law in any divorce taking place throughout New York and Long Island means that certain restrictions will automatically be implemented in any case. These automatic orders, which are served in a notice to be included with the summons delivered at the outset of the case, are designed, among other things, to maintain certain status quos and preserve whatever marital property may be subject to equitable distribution within a typical divorce.

While understanding all of the complex facets of divorce can be difficult, it’s important to note that the automatic orders that are included within any divorce procedure are mandatory, and a failure to comply with these orders may be regarded as contempt of court according to domestic relations law, and the uniform rules of trial courts. As I have worked alongside many individuals and couples in numerous divorces during my time as a family lawyer, I have become familiar with the automatic orders that bind both spouses during a New York Divorce proceeding. However, I find that it’s often helpful to advise individuals undergoing the divorce procedure that the orders will remain in full effect and force during the pendency of the action, unless modified, terminated, or amended by a further order issued by the court, or through a written agreement that has been approved by both parties. Continue reading ›

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The long awaited divorce law overhaul, that has major changes to the maintenance (fka alimony laws) was signed into law by the Governor on September 25, 2015 and is effective as of October 25, 2015 for temporary maintenance and in January 2016 for the remaining changes. The new law continues the temporary maintenance guidelines (maintenance that is to be paid while a divorce case is pending), but also extends these guidelines to post-divorce maintenance awards (maintenance for some duration after the divorce judgment is entered. The old law put a cap of $543,000.00 for the income to be considered in the maintenance guideline calculation while the new law lowers this cap to $175,000.00.  The cap will change over time according to Consumer Price Index changes. In a court’s discretion a judge may consider income over the cap or deviate from the guidelines by using the criteria established in the statute. Family expenses, while the divorce case is ongoing, under the new law need to be considered and allocated between the parties by the court where it is appropriate.

Many practitioners felt that the guideline temporary maintenance calculation under the old law produced unduly burdensome awards, and perhaps this lower income cap might address that feeling. Further, under the old law there was a guideline formula for temporary maintenance but none for post divorce maintenance. Post divorce or durational maintenance was rather to be based on a subjective list of criteria contained in the statute. Since the considerations were subjective, including no guide on how long maintenance should last (if there was to be any at all) resulted in a wide range of results that varied from case to case, courtroom to courtroom, and between venues. Hopefully the new law can provide more predictability in matrimonial cases. This can be helpful regardless of the process used to get to a divorce be it mediation, litigation, settlement negotiation, or collaborative law.  If people have a better idea what to expect after trial, it can obviate the need for certain issues to be litigated.  Continue reading ›

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Egregious conduct affecting equitable distribution in divorce

As a matrimonial and family law attorney, my clients regularly ask me various questions about the factors that may have an impact on their divorce, or the determination of equitable distribution. Some partners believe that they should be entitled to an unequal distribution of assets during circumstances where one party within the relationship was involved in an affair, committed acts of abuse in an emotional or physical sense, or engaged in examples of domestic violence. Unfortunately, the response I often give to by clients is that in most cases – issues of “marital fault” are rarely considered to be a relevant factor in deciding equitable distribution.

The law of Domestic Relations in New York provides guidance for the factors a court should consider when making decisions regarding equitable distribution. Although that statute doesn’t actually offer a distinct provision for consideration of fault, it does allow for some flexibility in the form of a catchall provision permitting the court to analyze “any other factor” that can be determined as both proper and just in considering equitable distribution, maintenance (aka alimony) or child support. Unfortunately, most courts reject the idea that marital fault can be considered as a proper and just factor for consideration, except for in very specific or “egregious cases” which have a direct impact on the court conscience. The fundamental aspects of this rule center on the idea that marriage – in all of its many forms – is a type of economic partnership, meaning that martial estates should always be divided in an accordingly “fair” (equitable) manner. It’s also worth noting that many courts suggest that assigning fault in any particular circumstance can be incredibly difficult, and introducing such an issue into court procedure could make cases far more time consuming than they currently are. After all, New York now has No-Fault divorce, in addition to the fault based factors which still exist as grounds. Continue reading ›

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In a previous blog post, we touched upon issues of discretion of judges and other triers of fact (referees, judicial hearing officer and support magistrates), and the ways in which parties in a legal proceeding, and their attorneys may have the ability to shape the decision of a judge or court. In matters of family law, there are a number of discretionary points to consider that may help to change or manipulate the decision a judge makes at the end of a case or hearing. These matters can range from imputation of income, to the determination of what should be considered “equitable” distribution in the dissolution of a marriage.

Imputation of Income

In child support and spousal support cases, for example, the court may conclude that an individual involved within a particular case has attempted to diminish their assets or income in an attempt to avoid a child support or spousal support obligation. If such circumstances are found to be true, then a court may choose to “impute” income or calculate someone’s income based on their previous resources or income, lifestyle or based on expenses paid on their behalf by other people. For example, this may happen if the court believes that the individual in question chose to voluntarily leave their previous jobs, were fired for cause, or personally chose not to work either full time, or at all. In combination to previous earnings, a court may consider the education and ability to learn of the party involved. Whether that party has chosen to diligently apply for employment in a manner that is commensurate with their experience, abilities and background could become an important factor when determining income. A judge or support magistrate may consider what people with similar backgrounds and educations are capable of earning when imputing income. Continue reading ›

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Decisions to be made on Equitable Distribution

The term “equitable distribution” refers to the method that is used to divide obligations, property and assets between spouses as a part of divorce proceedings. An important concept to understand is that equitable distribution doesn’t necessarily mean that things are divided “equally”, only that they are divided fairly according to the law. The doctrine of equitable distribution is utilized to consider the future financial circumstances of each spouse following the termination of the marriage. Although equitable distribution is a somewhat flexible system, it can be difficult to predict the outcome of any case, as some of the factors that the court considers are quite subjective.

The process of equitable distribution in regards to property involves three major steps:

  1. The determination of which property can be established as part of the equitable distribution
  2. The valuation of the property to be considered
  3. The actual division of the property or assets

Continue reading ›

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Marital assets, and debt, in New York generally are things that are acquired during the marriage that does not fall under the exception of separate property.  Separate property, in general are things that a spouse entered the marriage with that was kept separate throughout the marriage. Property acquired by gifts or inheritance that are kept separate also usually fall under the category of separate property.  Marital assets are broadly defined while separate property is narrowly defined. It is the burden of a party claiming something to be separate property to prove that claim.  In a divorce, separate property needs to be identified, while the marital assets and debt need to be distributed.

Equitable could mean equal or something different when distributing property in a dissolution of a marriage in New York. Equitable means what is fair. Sometimes there are pre or post-nuptial agreements or a separation agreement that already dictate how property should be divided. Usually these agreements are honored but there are circumstances when a court could void them or set them aside. If there are no agreements in place, the parties and their attorneys can agree upon what is equitable. If there is no agreement on what is fair, then equitable distribution becomes the job of the judge.

But isn’t everything just divided in half in a divorce?  Usually that is the case for marital assets and debt, but it is not a foregone conclusion.  Sometimes the split might be that eighty percent of the marital assets go to one spouse with twenty percent to the other.  Sometimes the split is equal after an application of credits to one side before the division.  Some assets are given entirely to one spouse, while others are shared in some way at times. Continue reading ›

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