Equitable Distribution Attorney in Commack, New York

In a New York divorce, a spouse's entitlement to Maintenance (alimony) and the Equitable Distribution of marital property is contained in the statutory factors enumerated in the New York Domestic Relations Law Section 236(B).

Marital Property

The most significant term used in the new law and probably the issue most often litigated, since the parties often do not agree on either what property constitutes marital property or the value of the marital property. Marital property is all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which the title is held.

It is marital property that will be equitably distributed upon the dissolution of the marriage. Marital property does not include separate property (as hereinafter defined). Separate property will not be distributed but will remain as the property of the one who holds the title.

By way of illustration, if a spouse buys a house during the marriage using marital funds and title to the house is placed in that spouse's name only, the property will be considered marital property subject to equitable distribution. If the house were purchased with separate funds (funds acquired before the marriage or inherited funds, for example), the house would be considered separate property since it would be an exchange of one form of separate property for another.

Bank accounts, IRAs, stocks and bonds, household furniture, automobiles, and all other property acquired during the marriage with marital funds are considered marital property, subject to equitable distribution.

The elements of the New York statute are listed here for general information only and to indicate the complexity of factors that the court must consider in rendering its decision. Every case is different and a judge will weigh some factors in a particular case more than others depending on the facts of the case.

Note: Child Custody and Support are not considered part of the equitable distribution. Please see our Family Law section for information on that subject.

The New York courts will consider factors such as Length of the Marriage; Conduct of the Parties during the Marriage; Age and Health of the Parties; Occupation of the Parties and their respective incomes and sources of income; Vocational Skills and Employability of the spouses; Estate of the spouses; Liabilities of the spouses; Needs of the spouses; Opportunity of the spouses to Acquire Future Income and Capital Assets; LIFETIME AND DURATIONAL MAINTENANCE IN NEW YORK

In the New York Domestic Relations Law, Section 236(B), the term "alimony" was changed to "maintenance" and the New York court was authorized to award maintenance (also known as "spousal support"), for a definite period of time "durational maintenance" or for an indefinite "nondurational" award to last until death or remarriage.

Most durational maintenance awards were made on the premise that the dependent spouse could become self-supporting after several years.

In New York, durational maintenance is more commonly awarded where the spouse seeking support "is relatively young and healthy and" is not required to care for young children.

Lifetime maintenance has been awarded, the recipient spouse has almost invariably been older and often in impaired health and the supporting spouse was in far better financial condition.

The realistic function of durational maintenance is to allow the recipient spouse an opportunity to achieve independence. Thus, the award should be in an amount and for a time period sufficient to give her a reasonable period of time in which to learn or update her work skills and to enter the employment market with a view to being self-supporting.