When I meet with a client for the first time, a primary concern of the client is how assets will be distributed in a divorce. It is not uncommon for the client to come in with the assumption that all assets will be equally divided. It is at this point that I have to inform the client that this assumption is not correct.
New York is an equitable distribution state. This means that marital property and liabilities will be divided “equitably” between the spouses. Absent a few exceptions, if the property or debt was acquired during the marriage then it will be equitably distributed. Marital property can include a myriad of assets, such as real property, retirement, savings, and businesses; it can even include a license or degree earned during the marriage.
“Equitable” does not always mean equal. In determining how to distribute assets and liabilities, the Court must consider the statutory factors set forth in Section 236 Part B of the New York Domestic Relations Law. No single factor is more important than the other, and the Court does not need to consider each and every factor. There are fourteen statutory factors for the Court to consider. Here are a few of them:
- The duration of the marriage – if the marriage is a lengthy one it is common for the Court to equally divide the property and debts
- Age and health of both parties – if one spouse is older than the other, or in poorer health, then it is possible that the Court will give a greater share of the assets to the spouse that has the greater need;
- The direct or indirect contributions made by either spouse in acquiring the property, such as contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other spouse – although one spouse may make very little financial contribution to the acquisition of an asset, her indirect contributions will still have significant value.
For example, the wife may be the homemaker and care for the children while the husband owns and operates a business. While the wife made no financial contributions towards the business, her caring for the home and the children enabled the husband to pursue his business interests. The Court will consider the wife’s indirect contributions in determining how to equitably distribute the value of the business.
When you walk down the aisle after saying “I do”, you do not automatically turn “yours” into “ours.” First you need to be married to acquire property during the marriage, and then a Court needs to look at what each person has contributed to the marriage, whether financial or otherwise.
How property is equitably distributed is heavily dependent on the facts and circumstances of each particular case. Rather than make your own conclusions, you should speak with an experienced matrimonial attorney for guidance about how equitable distribution and the statutory factors will impact the distribution of your assets and liabilities.