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A road map of New York’s divorce law is found in the statute commonly known as the Equitable Distribution Law (“Google” – NY Domestic Relations Law Section 236 B.) Under the Equitable Distribution Law (“E.D.L.”), the relationship between a husband and wife is considered to be an economic partnership. Thus, if a marriage is dissolved, marital property is to be divided equitably, considering the circumstances of the case and of the spouses.

The E.D.L. also makes provision for an award of temporary and/or post-divorce maintenance (spousal support). (“’Google” – N.Y. D.R.L. Section 235 B.6. for a list of factors considered by the court in awarding temporary maintenance and/or maintenance awarded after trial).

A stroll through the provisions of D.R.L. Section 236 B. is an absolute must for a person considering divorce or who is the subject of a divorce action. The thrust of the D.R.L. is that the economic “fruits” of the marital partnership (“marital assets”) should be equitably divided between divorcing spouses.

Marital property is defined by the D.R.L. as 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 title is held.

Property classified as “separate property” will not be divided between spouses unless they otherwise agree. Separate property is classified as: a) property acquired before marriage or through inheritance or a gift (other than between spouses); b) compensation received for personal injuries such as monies received as the result of a recovery in a personal injury case; c) property acquired in exchange for other separate property or for the increase in value of the separate property (except to the extent that the appreciation results from the contributions or effects of the other spouse) and d) property described as separate property in an enforceable pre-nuptial or post-nuptial agreement such as a separation or settlement agreement.

The following statutory factors are considered by a court in equitably dividing marital property between divorcing spouses:

  1. The income and property of each party at the time of the marriage, and at the time of the commencement of the action;
  2. The duration of the marriage and the age and health of both parties;
  3. The need of a custodial parent/party 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 need, if any, for maintenance and/or child support;
  6. Any equitable claim to, interest in, or direct or indirect contribution made, to the acquisition of marital property by the party not having title, including joint efforts and expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
  7. The liquid or non-liquid character of all marital property;
  8. The probable future financial circumstances of each party;
  9. The impossibility or difficulty of evaluating any component 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;
  10. The tax consequences to each party;
  11. The wasteful dissipation of assets by either party;
  12. Any transfer or encumbrances made in contemplation of a matrimonial action without fair consideration;
  13. Any other factor the court deems relevant

I strongly suggest that you review the provisions of the Domestic Relations Law, Section 236 B., prior to your first consultation with an attorney, and be prepared to ask questions about its content. The best client is an informed client.