Divorce Advice: What does equitable distribution mean in a divorce?

By Marion TD Lewis

 

Question: What Does Equitable Distribution Mean?

My answer filed in divorce advice:

The word equitable comes from the word equity which means fair and just. So equitable has to do with that which is fair and just. New York is what’s called an equitable distribution state – as contrasted to California and other states which are community property states. And there is a third way that courts might divvy up the spoils in a divorce based on who had title. Those states would be called title states.

In New York, title distribution has given way to equitable distribution. This is based on the principle that marriage is an economic partnership and when the partnership ends, both partners are entitled to take in the distribution of the assets and to share in the responsibility for the liabilities.

So it is very important to determine what assets are liabilities are marital property and which ones are separate property. Marital property encompasses anything bought or incurred during the marriage. It does not pertain to assets incurred while you were living together. New York is definitely not a “common law” marriage state. If something was incurred or bought prior to the marriage, under normal circumstances it will be deemed separate property and will not be subject to the equitable distribution laws of the State.

What is “equitable” is decided by the Court if the parties cannot decide amongst themselves. The court may consider under New York Domestic Relations Law Section 236(B), the length of the marriage, occupation of the parties, conduct of the parties, employ-ability of the parties, and other factors in making its determination of what is fair, equitable and just.

How does the Court determine what happens to the marital home? How does that get divied up fairly and equitably? There is no special rule relating to the marital home in a divorce. The Court has the power to order the house or condo sold, or may order that it be sold when the children finish high school, particularly when the children of a long marriage have known no other home. The spouse who has “custody” of the children usually gets the house – that seems to be the most “equitable” arrangement that many Courts deem appropriate.

 

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Last updated March 2017

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