Does equitable distribution of property mean equal distribution in a New York Divorce action? That is an interesting question given that many attorneys advise that you can expect a court to do that in garden variety divorces. But it should not be the end of the factual inquiry and it is not necessarily the ultimate result. Rather, it is a good starting point for analysis of your case, with departures necessarily coming thereafter.

In 2020 interesting case law came down in New York in support of the fact that equitable distribution of property between spouses is not necessarily equal. This is particularly interesting when the valuation and division of marital businesses are at play. The Supreme Court has enormous discretion in dividing up assets between the parties.   In an interesting case that came down in 2019 the Court held that because the parties had been separated since 1089 it would be unjust to give the wife half of the husband’s pension. If you want to read the case you can read the following citations on any law library online at See Allen v. Allen, 179 A.D.3d 1318, 1319, 117 N.Y.S.3d 736 [2020] and Martin v. Martin, 178 A.D.3d 1339, 1341, 116 N.Y.S.3d 714 [2019].

In thinking about equitable distribution, think of fairness and not necessarily equality because the Court has tremendous discretion in looking at the facts to determine a just and fair award.

In DRL § 236(B)(5)(d) the law sets forth statutory factors that a Court must weigh, and the Court should normally set forth which statutory factors were relied upon in making their decision. At the very least there should be an articulation by the court that all factors were considered.

Interestingly enough, the Courts in the Second Department have lately taken into consideration the fact that the parties were separated for over a decade before filing for a divorce.  That seems fair since the economic partnership elapses once the parties physically separate. Physical separation thus becomes an important fact to consider when a NYC divorce attorney advised a client as to equitable distribution in a New York Divorce action. However, in making these awards the Court makes it very clear that they are also considering the length of the marriage, and other financial concerns and do not rely solely on one statutory factor.   Keren v. Keren, 201 A.D.3d 906, 158 N.Y.S.3d 592


Your Manhattan Divorce lawyer 

Lisa Beth Older, Esq. 

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