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WHAT IS EQUITABLE DISTRIBUTION AND WHAT IS FINANCIAL DISCLOSURE?
June 25, 2017
Prior to the passing of DRL 236 B we had the concept of common law property which meant when you got a divorce the property in a divorce was granted to the title holder. But women got alimony.
In 1980n the New York law changed, and it became gender neutral, opening the door for men to get spousal support under circumstances that called for it.
New York is now an equitable distribution State and we divide marital property regardless of who is on the title. DRL 236B (5) allows for equitable distribution of marital property "in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage." This provision allows any NY court to equitably distribute marital property where there has been a change in the marital status brought about through a divorce or an annulment. The court may not distribute marital property under any other context other than in certain special proceedings usually brought after a foreign divorce judgment has been registered in New York, but never addressed the marital property therein. "Equitable distribution of…..marital property, unlike maintenance, custody and child support, is only available in actions where the marital relationship is terminated by divorce, dissolution, annulment or the declaration of the nullity of a void marriage, or in a proceeding to obtain a distribution of marital property following a foreign divorce judgment (Domestic Relations Law § 236 [B]  [a];  [a]; § 240 ;"
Accordingly, a New York Divorce Court may not entertain a pendente lite application for equitable distribution of property since a change in the marital status that is required by DRL 236 B (5) (a) is had only when the Court determines the final divorce decree. The Appellate Division held in the case of Adamo v Adamo 18 A.D.3d 407 (2nd Dept. 2005) that "It is well settled that before some alteration in the marital relationship, courts lack the authority, absent the consent of the parties, to direct the sale of the marital residence owned by the parties as tenants by the entirety." Therefore, absent a situation where the parties stipulate to something that is agreed upon by the court, do not expect a court to distribute marital property during a divorce case as and for temporary relief and do not expect the court to order a sale of the marital residence while your divorce case is still pending.
Financial Disclosure is a Necessary Component of Equitable Distribution
DRL 236 B (4) controls financial disclosure of the party’s assets.
This means that you must disclose all of your assets in a New York divorce case.
This is mandatory as all income and assets must be shown on your sworn statement of net worth and this includes property that you thought was yours, such as inheritance or gifts of income you earned before the marriage. You may mark the fact that you think the property is separate but you must disclose it nevertheless.
Just because you disclose it does not mean that it is subject to distribution from you to your spouse. That all depends on how the Court classifies your asset.
Once classified as separate or marital, these items may be subject to equitable distribution, even some items you thought were not possible to distribute, such as businesses. Some of the items are cash, checking accounts and savings mortgages, debt, security deposits, real property and pensions, retirement accounts and intellectual property, but there are many other acquisitions that may be subject to equitable distribution.
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