The Equitable Distribution Factors

In New York State, marital property is subject to equitable distribution in a divorce action.  The “equitable” distribution of marital property is determined by the set of fourteen factors that are listed in the Domestic Relations Law.  These factors examine the “economic partnership” that constitutes the marriage in question and guide a court in determining what is equitable.  Very often “equitable” is equal.

The specific equitable distribution factors set forth in Domestic Relations Law are as follows.

(1)       The income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action;

(2)       The duration of the marriage and the age and health of both parties;

(3)       The need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

(4)       The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

(5)       The loss of health insurance benefits upon dissolution of the marriage;

(6)       Any award of maintenance;

(7)       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;

(8)       The liquid or non-liquid character of all marital property;

(9)       The probable future financial circumstances of each party;

(10)     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;

(11)      The tax consequences to each party;

(12)     The wasteful dissipation of assets by either spouse;

(13)     Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and

(14)     Any other factor which the court shall expressly find to be just and  proper.

Courts have some latitude with the fourteenth factor; “Any other factor which the court shall expressly find to be just and proper.”  As discussed previously, this probably does not include an examination of marital fault.

The presence of minor children of the marriage in either parties’ household is a major factor, although it is not stated as such in the Domestic Relations Law.  Factor number 3 mentions the need of the custodial parent to remain in the marital residence with the children of the marriage.  However, this factor usually works to delay the sale of the martial home rather than resulting in an unequal distribution of its net value.

Basically in a marriage where there are minor children, or even adult children, equitable distribution is very likely to be equal distribution of the marital estate.  Different assets may be offset against one another, but the bottom line will be roughly 50/50.  There is no credit against an equitable distribution award for any child support paid.

In childless marriages, equitable distribution that is not 50/50 is far more likely than in a marriage with children.  Equitable distribution in childless marriages often is 50/50 but that is because the economic partnership was an equal one and the distribution of the fruits of the partnership should be equal.  In cases where the parties made vastly different economic contributions to the marriage, significant deviations from equal distribution are common.  These cases are few and far between.  This was discussed more in depth in an early blog post this past Spring.

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Posted in Agreements, Divorce, Property