Equitable distribution of property in divorce has to do with the fact that a marriage is an economic partnership and the courts recognize this as a fact. However not every spouse gets treated equally; rather they get treated equitably. This means that a court will look at all of the parties. assets acquired during the marriage and divide them between the parties. Domestic Relations Law § 236(B)(5)(d) controls this area of a New York Divorce.

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How Will a Court Divide Marital Property?

In New York “equitable” does not always equally divide the assets in a New York divorce says New York divorce lawyer Lisa Beth Older, Esq. A prominent New York matrimonial law, Timothy Tippens, Esq. said:

“The purpose of equitable distribution law is to achieve a fair allocation of marital property upon dissolution of the marital economic partnership. Towards this end, the statute bestows broad power, flexibility, and discretion on the matrimonial court. While there are those who urge that the statute should be amended to embody a mandate or presumption of equal division.”

Dividing marital property is dependent upon the type of property to be divided, and it is not always equal, the exception being perhaps a home purchased with marital money where the mortgage was paid down during the marriage.

But what if there is an appreciation in value of your spouse’s property that he had by gift or before the marriage. Well that would “depend”. Appreciation in value of a separate property asset will likely be unequal unless you acquired the business together and worked on it equally,

To give you an idea as to the judicial discretion a court has in dividing property earned or acquired during your marriage here are the factors the court will consider in arriving at an award in New York Divorce cases. Below enumerated are the factors a Court or New York Divorce lawyer will consider under DRL 236-B(5)(d).

• the income and property of each party at the time of marriage, and at the time of the commencement of the action;
• the duration of the marriage and the age and health of both parties;
• the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
• the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
• the loss of health insurance benefits upon dissolution of the marriage;
• any award of maintenance under subdivision six of this part;
• 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;
• the liquid or non-liquid character of all marital property;
• the probable future financial circumstances of each party;
• 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;
• the tax consequences to each party;
• the wasteful dissipation of assets by either spouse;
• any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• any other factor which the court shall expressly find to be just and proper.

How will the Court treat the debt of the marriage?

First the consideration a court will give is the “the nature of the debt itself, the manner in which and for whose benefit the funds were expended and the source of repayment.” Jonas v. Jonas, 660 N.Y.S.2d 487, 487 (3d Dept. 1997). The spouse who ways the other spouse should assume the debt then they have to prove it. In other words, the debt accrued during the marriage, including income taxes, are not automatically the responsibility of the spouse incurring said debt. It all depends on where that money went. If it went for the sole purposes of the borrowing spouse you may argue that that person should assume that particular debt. But if the debt was used for marital bills then both spouses should probably assume that debt. It would really depend on the New York Divorce judge or the lawyers settling that issue in your divorce case. for example, if you use our credit card frivolously to buy extravagant clothes then you may be responsible for that debt.

By: Lisa Beth Older, a New York divorce lawyer and a New York child custody lawyer who skillfully serves the following locations: New York City, Manhattan, the Bronx, Brooklyn, New York, and Westchester County.

Warning: The information contained herein is not intended to substitute for legal advice from your own retained lawyer in new york state. This article is merely informational in nature, and is based upon one attorney’s knowledge of the practice of family law, matrimonial law, domestic violence, child custody, child support and orders of protection.