Overview of Equitable Distribution in New York

Rincker Law Family/Matrimonial Law Leave a Comment

New York courts in a matrimonial action uses the term “equitable distribution” to describe how the assets will be divided between the two spouses.  The term “equitable distribution” refers the equitable (not necessarily equal) distribution of marital assets upon a divorce.   (When I tell my clients that the court divides things “equitably” not not necessarily “equally” I get a strange look.)

In order to decide how marital assets are to be distributed, both spouses have to make true and accurate disclosures under oath (or the Statement of Net Worth).  Once all assets are disclosed, they need to be classified as marital or separate property, since only marital assets are subject to equitable distribution.  There is a tremendous amount of financial disclosure in the divorce:  what each spouse (allegedly) makes/has and how much the attorneys are getting paid.

Generally, marital assets include anything obtained during or after the date of the marriage, or any separate assets that were commingled with marital assets.  Assets acquired pre-marriage are not marital assets (they are separate property) and, therefore, are not subject to equitable distribution.  In addition, separate property includes gifts to one spouse by third parties, inheritances, certain compensation due to a personal injury case, and property designated as “separate” in a valid separation agreement between the parties.

I have my clients make a list of everything they own and divide it into three buckets: separate property for Husband/Wife, separate property for Wife/Husband, and marital assets.  The next challenge is determining how those “marital assets” should “equitably be divided.

To determine an equitable distribution of the marital assets, courts will consider factors including, but not limited to, the length of the marriage, the age and health of both parties, custodial arrangements for the children, any spousal maintenance to be paid, the career and future earning capacities of the spouses, and any waste or “fault” by the other spouse (e.g., cruel & inhuman treatment, adultery, abandonment, imprisonment).  A myriad of other factors may be considered at the discretion of the court.

Share this Article

Leave a Reply

Your email address will not be published.