Equitable Distribution and Maintenance

By: Daniel E. Clement, Esq.

What is maintenance and how does it differ from alimony?

In New York, alimony is called maintenance. Maintenance can be awarded for an indefinite or definite period of time. In considering an award of maintenance, the Court must consider the standard of living of the parties that was established during marriage, the circumstances of the case and of the parties, whether the party who is getting the award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other’s reasonable needs.

How is maintenance calculated?

The following factors are considered by the Court in calculating the duration and amount of maintenance:

1. the income and property of the respective parties including marital property distributed;

2. the duration of the marriage and the age and health of both parties;

3. the present and future earning capacity of both parties;

4. the ability of the party seeking maintenance to become self supporting and, if applicable, the period of time and training necessary therefor;

5. reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;

6. the presence of children of the marriage in the respective homes of the parties;

7. the tax consequences to each party;

8. contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

9. the wasteful dissipation of marital property by either spouse;

10. any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and

11. any other factor which the Court shall expressly find to be just and proper.

How will the marital property be distributed?

In New York, upon dissolution of a marriage, the Court must distribute "equitably" all "marital property" regardless of the manner in which title is held, considering the following factors:

1. the income and property of each party at the time of marriage and at the time of commencement of action;

2. the duration of marriage and the age and health of both parties;

3. the need of custodial parent to occupy or own marital residence or to use or own household effects;

4. loss of inheritance rights and pension rights upon dissolution as of date of dissolution;

5. any award of maintenance;

6. any equitable claim to or interest in, or direct or indirect contribution to the acquisition of the marital property by the party not having title, including joint efforts or expenditures and contributions and services 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 asset or interest in a business, corporation or profession; and the desirability of retaining the asset, or interest in the business, corporation or profession 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 spouse;

12. any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and

13. any other factor which the Court shall expressly find to be just and proper.

What property is subject to equitable distribution?

All marital property may be equitably distributed. Martial property is broadly defined as all property acquired by either or both parties during the marriage, but before execution of a separation agreement, and before commencement of a matrimonial action, regardless of the form in which title is held.

What property is not subject to equitable distribution?

Separate property is not equitably distributed. Separate property is broadly defined as:

a) property acquired before marriage or by bequest, devise, descent or gift from a party other than the spouse;

b) compensation for personal injuries;

c) property acquired in exchange for or the increase in value of separate property;

d) any property described as separate property in a written agreement between the parties

Does equitable distribution mean that all marital assets get split equally?

No. Equitable does not mean equal. Marital property must be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.

What marital property can be equitably distributed?

The types of property that may be equitably distributed is endless. Common examples include: the marital home, vacation homes, automobiles, household furnishings, bank accounts, stock portfolios, pensions and retirement plans, interests in businesses and professional degrees.