At Winter & Grossman, PLLC, we recognize that a client's ability to start over after their divorce depends in part upon obtaining a fair division of marital property.
New York divorce law incorporates the principle of equitable distribution.
What is equitable distribution?
How does equitable distribution work?
How can you navigate equitable distribution?
While equitable distribution may seem complicated, we can help you through this complex maze to protect your rights.
We will review your finances with you, discuss a plan to protect your rights and to work towards your goals, help you anticipate the issues, advise you as to a fair resolution, and work through the trial process if needed.
Each case is different and each client is different – we work closely with each client to understand each case.
We are not a “volume” or “cookie-cutter” practice. We devote time to each file and to learning about and getting to know our clients.
What Is Equitable Distribution?
Equitable does not mean equal.
“Equitable distribution” is more akin to “fair” than “equal.” The property of parties to a divorce will fall into two basic categories:
“Separate property” and
“Marital property.” (Although some property can be in both categories).
Marital property will be the subject of equitable distribution. Each party generally retains separate property. Separate property generally includes the following:
Property acquired by either party before the marriage
Damages for personal injury awarded to either party (but only pain and suffering damages and punitive damages)
Property acquired individually by either spouse through gift (except gifts from the other spouse) or inheritance
Appreciation of separate property except under certain circumstances
Property acquired in exchange for other separate property
Assets Subject to Equitable Distribution
Generally, marital property is property that is not included in the categories above that is acquired by either party during the marriage.
These rules apply despite one party or the other being designated as the owner or titleholder of the property.
The types of marital property that are subject to equitable distribution include, but are not limited to, the following:
Cash, bank accounts
Pensions & retirement accounts
Vehicles (cars, boats, aircraft, etc.)
Household goods and furnishings
Right to debt repayment
Points/frequent flier miles on credit cards
This list is far from exhaustive - marital property may include property or benefits that might not be considered by the parties.
After consultation with each client and their financial professionals, we also routinely work with forensic accountants and appraisers/valuation experts to assist in determining the value of assets subject to equitable distribution.
Because our attorneys have decades of experience and focus extensively on matrimonial matters, we have the expertise and knowledge to ferret out hidden assets, expose undisclosed income streams, and craft creative resolutions to accomplish each client’s goal, such as retaining a particular asset (e.g. a residence or collectible) or income stream (e.g. a pension).
Factors Relevant to an Equitable Distribution of Property
Parties can reach an agreement regarding the distribution of property or enter into a prenuptial agreement that specifies the distribution of certain property.
Absent such a prenuptial agreement, the judge must make this determination and will consider, among other things, the following factors:
Age and health of the parties
Parties' likely future financial condition
Transfers or encumbrance of marital property without fair consideration in contemplation of divorce
Waste of marital assets
Liquidity of the parties’ assets
Property and income of the parties at the time of marriage and at the time of the divorce filing
Health insurance, inheritance, and pension rights that will be lost because of divorce
Need for residential parent to remain in the family home and use household items
Award of spousal maintenance
Other factors that are just and proper
Enforcement of Equitable Distribution
Are you already divorced and cannot obtain the assets that were distributed to you? Does your ex-spouse essentially thumb his/her nose at you? You have rights to enforce the award.
You should not delay your efforts to do so – if your ex-spouse transfers the assets, encumbers them, or dies, you may lose the ability to enforce some or all of your rights.
Were assets distributed to your spouse that you cannot transfer or pay? Do you need help working through this process? We can help.
Having worked with clients on various aspects of enforcement of such awards, we are experienced in the process, can explain it to you, help you address the issues and work your way to a resolution so that you can have some finality.
Winter & Grossman represents a wide range of clients with varied financial circumstances.
Whether you believe that your assets are relatively straight forward or diverse and complex, our attorneys have the knowledge and experience to assist you and to ask the questions you may not have thought to ask. We invite you to contact us to discuss your matter for a consultation.