EQUITABLE DISTRIBUTION OF PROPERTY

All assets or debts acquired by either spouse during the course of the marriage (from the date of the marriage to the date of the commencement of a legal action) are marital and subject to equitable distribution, except for certain specific exclusions, as set forth below. It is irrelevant in whose name the asset or debt is titled; even if the asset is in an account in your spouse's name alone, you may still be entitled to an equitable share of the asset. Income from work, pensions and other deferred compensation accounts are marital as well and are subject to equitable distribution.

The enhanced earning capacity of a spouse is a marital asset that is subject to equitable distribution; If either spouse undertook educational studies or acquired a license to work in a field during the course of the marriage, the studies and/or license may have enhanced that party's earning ability and the same can be valued and equitably distributed as marital property.

If a party wants to make a separate property claim and not share an asset, that party has the burden of proving that the asset was received by gift or inheritance to that party alone, and the asset was not commingled with marital assets and not transmuted into a marital asset. This burden is very difficult and must be conclusively proven.

Equitable distribution does not necessarily mean an equal share. The Supreme Court has jurisdiction in "equity" to divide the asset or debt in an equitable way. Although the Court usually divides assets and debts equally, it can be argued that the distribution should be different based on one party contributing more to an asset, one party incurring the debts unilaterally, or one party squandering assets and reducing the net worth of the parties.

You are entitled to full disclosure of all assets and debts, and your attorney can use various discovery devises to value all of the assets. Many times a spouse will try to hide assets in an attempt to alleviate those assets from being distributed. You need strong legal representation to discover all the marital assets and have them properly valued. If the court makes a determination on equitable distribution, the factors under the Domestic Relations Law are as follows:

  • 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;
  • 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 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 parties find to be just and proper

Equitable distribution is complex and requires competent legal representation. If you have assets and/or debts that need to be distributed, or if you have received a summons to appear in court, you should immediately consult with an experienced divorce lawyer to ascertain your obligations and protect your rights.

Ella A. Kohn, Esq. handles matrimonial and family law actions across New York including in Westchester and Putnam counties as well as New York City and Long Island and is available to assist you in protecting your rights.

Contact Ella A. Kohn about your legal matter today!

Call (914) 358-5500 to arrange for a free consultation.

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Ella A. Kohn
Attorney At Law
235 Main Street, 3rd Floor
White Plains, NY 10601
(914) 358-5500

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