In New York, marital property is divided pursuant to equitable distribution. The first step is to identify and value the marital estate. For example, when was the marital home purchased? What is it worth? Is there a mortgage or home equity line of credit? Did either party contribute premarital funds or gifts from third parties to the acquisition of the residence?
Once the assets are identified and valued, the marital property is to be divided equitably, given the circumstances of the case and the parties. To aid a court, Domestic Relations Law section 236 (B) (5) (d), which directs a judge to consider the following factors:
- the income and property of each party at the time of marriage, and at the time of the commencement of the action;
- the duration of the marriage and the age and health of both parties;
- the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
- the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
- the loss of health insurance benefits upon dissolution of the marriage;
- any award of maintenance under subdivision six of this part;
- 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;
- the liquid or non-liquid character of all marital property;
- the probable future financial circumstances of each party;
- 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;
- the tax consequences to each party;
- the wasteful dissipation of assets by either spouse;
- any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
- any other factor which the court shall expressly find to be just and proper.
In many cases, a judge, upon considering the required factors, will divide the marital property equally, although it is often said that equitable distribution is not necessarily equal. Feel free to call to talk about the particular circumstances of your case.
