The premise of the
equitable distribution law is that a marriage is among other things an economic partnership to which
both parties contribute as spouse, parent, wage earner or homemaker. Although
equitable distribution does not necessarily mean equal distribution the
general rule calls for an equal distribution of the marital assets unless
the equities of an individual case require unequal distribution.
Modern marriages should be viewed as a partnership of co-equals. Upon the
dissolution of a marriage, there should be equitable distribution of all
family assets accumulated during the marriage and maintenance (alimony)
should rest on the economic basis of reasonable needs and the ability
to pay. From this point of view the contributions of each partner to the
marriage should ordinarily be regarded as equal and there should be an
equal division of family assets unless such a division would be inequitable
under the circumstances of a particular case.
The New York Divorce Courts
In New York the trial court is granted broad discretion in making an equitable
distribution of marital property and unless it can be shown that the court
improvidently exercised that discretion its determination should not be
Pursuant to the Domestic Relations Law the courts shall consider the following
- Income and property
- Duration of the marriage and age and health of the parties
- Need of the custodial parent to occupy or own the marital residence
- The loss of inheritance and pension rights
An award of
- Direct and indirect contributions
- Liquid or non-liquid character of the property
- Future financial circumstances of the parties
- The difficulty of valuing marital assets
- Tax consequences to each party
- The wasteful dissipation of assets
- Transfer in contemplation of action
- Any other factors
Marital Property is defined as all property acquired by either or both
spouses during the marriage. Under the equitable distribution law there
is a presumption that all property acquired by either spouse during the
marriage is marital property. The burden rests with the titled spouse
to rebut the presumption of marital property
Separate property is property acquired before the marriage or property
acquired by bequest, devise or descent or gift from a party other than
the spouse. It also includes property acquired in exchange for or the
increase in value of separate property except to the extent that such
appreciation is due in part to the contributions of the other spouse.
Where a spouse co-mingles his or her separate funds with marital funds
they become transmuted into marital property subject to equitable distribution.
How the Court Views Martial vs. Separate Property
Marital property is construed broadly in order to give effect to the economic
partnership concept of the marital relationship and separate property
is viewed as the exception to marital property and is construed narrowly.
Westchester County Divorce Lawyers
At Riebling, Proto & Sachs, LLP we have decades of experience in family
and divorce law. We have worked on countless divorce cases involving complex
equitable distribution issues. This includes
high net-worth divorces and complex separate property and marital property claims.
It is important to have an aggressive attorney to protect your rights and
maximize your financial interests in a divorce action.
Westchester County Divorce lawyers today. Our offices are located in downtown White Plains and we are available
for a free initial consultation. We can be reached by telephone (914)
946-4808 or by