NY Divorce at a Glance. Part 5 of 8: Equitable Distribution
An overview on how marital property is distributed in a New York divorce or annulment
Classification of Marital PropertyMarital property is any asset which is acquire by either spouse from the date of marriage to the date the divorce or annulment commences. Marital property includes any asset held by either spouse alone or if they hold it jointly.
The exceptions to marital property are property acquired from separate property, a gift from someone other than the spouse, inheritances, and personal injury awards for pain and suffering.
Case law has held that marital property is to be construed broadly, while separate property is to be construed narrowly
Marital Property Must be ValuedIn order for marital property to be divided, it must be valued. Valuation date can range from the date of filing for the divorce, to the date of trial or any date in between. Different dates may be used for different assets.
As a general rule of thumb, assets which appreciate passively, without input from the spouse, due to market forces will use a trial date valuation, while assets which actively increase due to the actions of a spouse will use a commencement date valuation
The Statutory FactorsThe trial court is given great discretion in how it distributes marital property, provided it gives some sort of basis using the statutory factors which are as follows
Factor 1: The income of the parties at the time of the marriage and at the time of the commencement of the action. DRL 236 B(5)(d)(1)
Factor 2: The duration of the marriage and the age and health of both parties. DRL 236 B(5)(d)(2)
Factor 3: The need of a custodial parent to occupy or own the marital residence and to use or own its household effects. DRL 236 B(5)(d)(3)
Factor 4: The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution. DRL 236 B(5)(d)(4)
Factor 5: The loss of health insurance benefits upon dissolution of the marriage. DRL 236 B(5)(d)(5)
Factor 6: Any award of maintenance under subdivision six of this part. DRL 236 B(5)(d)(6)
Factor 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. The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse. DRL 236 B(5)(d)(7)
Factor 8: The liquid or non-liquid character of all marital property; DRL 236 B(5)(d)(8)
Factor 9: Probable future financial circumstances of each party. DRL 236 B(5)(d)(9)
Factor 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; DRL 236 B(5)(d)(10)
Factor 11: Tax consequences to each party. DRL 236 B(5)(d)(11)
Factor 12: The wasteful dissipation of assets by either spouse; DRL 236 B(5)(d)(12)
Factor 13: Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; DRL 236 B(5)(d)(13)
Factor 14: Any other factor which the court shall expressly find to be just and proper. DRL 236 B(5)(d)(14)
Distributive AwardWhen dividing a specific asset is impossible or impractical, the court may make a distributive award instead. This is simply a dollar amount equal to the spouse's share as determined by the Court
A dissolution of the marriage is a requirementThe marriage must be dissolved for the court to have the authority to award marital property under equitable distribution. Absent a change in the marital status, the court is without authority to distribute marital property.
The lack in change of the marital status is why there cannot be a pendente lite award of marital assets and why it can never be modified.
Additional resources provided by the author
- Full Article on Equitable Distribution in New York
- Part 1 - New York Divorce Procedure at a Glance
- Part 2 - Custody at a Glance
- Part 3 - Spousal Maintenance at a Glance
- Part 4 - Child Support at a Glance
- Part 6 - Exclusive Occupancy of the Marital Home
- Part 7 - Counsel Fee Awards
- Part 8 - Grounds for Divorce