Mr. Burger handles both uncontested and contested divorces. He will take the time to explain your rights, the doctrine of equitable distribution, child support standards, maintenance and what constitutes your marital assets. By negotiating clients through this often volatile aspect of the law, Mr. Burger focuses on obtaining the best and most expeditious result for his clients.
Unfortunately, some marriages do not work out in the long term. Since marriages end at various timeframes for different couples, the law recognizes that each spouse has different needs and support requirements. It is important how the law’s specific factors will affect your financial and custodial outcome of both children and assets.
When deteriming financial distribution, the state considers the following fourteen factors, the Equitable Distribution factors of Domestic Relations Law (DRL) 235 Section (B) (5) (d).
Equitable Distribution Factors:
DRL 236 (B) (5) (d) indicates that in determining an equitable disposition of property, the court shall consider the fourteen equitable distribution factors set forth in the statute.
DRL 236 (B) (5) (g) states:
“In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and
the reasons for its decision and such may not be waived by either party or counsel.”
The fourteen factors are as follows:
1. The income and property of each party at the time of the marriage and at the time of the commencement of the action.
Implication: the spouse with the less earning power and with the less property may be deserving of a greater share of the marital assets. For example a spouse is an investment banker making six figures a year and the spouse is a homemaker who abandoned his/her career to raise the children and take care of the house. A court will give a greater share of the marital wealth to the spouse who gave up their career in this example. (Remember, that the law is equitable distribution and not equal distribution, it is not always 50%/50%).
2. The duration of the marriage and the age and health of both parties.
Implication: greater financial protection should be afforded spouses in longer term marriages, and to older spouses and those in poorer health. It would be more difficult to reenter the workforce/ or re-educate one’s self at an older age than a younger person, and a court would distribute a greater share of the marital assets to the spouse less able to generate a living wage on their own.
3. The need of a custodial parent to occupy or own the marital residence and to use or own its household effects.
transfer ownership to one spouse (thereby requiring a buy-out of the other spouse’s interest or an appropriate credit);
force an immediate sale; or
delay the sale until some later date (ie when the children turn 21 years old).
Implications of delayed sale: equitable distribution is postponed until some future date. In addition, the non-possessory spouse may not qualify for a mortgage (and, thereby, may be unable to purchase a new residence) as long as his or her name remains on the mortgage at the marital residence.
In this situation, a court will permit the spouse with primary custody of the children to continue to live in the marital home to avoid disturbing the children’s pre-separation lifestyle for educational, cultural , and environmental purposes.
4. The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution.
This factor is now rarely cited by the courts. Pensions are now regularly distributed by means of Qualified Domestic Relations Orders or buyouts based on present value.
5. The loss of health insurance benefits upon dissolution of the marriage.
This is the newest of the equitable distribution factors which was added in 2009. It is effective for matrimonial actions commenced after September 16, 2009. The legislature also enacted DRL 255 requiring parties to be notified that, once a judgment of divorce has been granted, a party may no longer be eligible for coverage under the other spouse’s health plan. Be aware and forewarned, COBRA is very expensive but does allow for a former spouse to be covered for up to 36 months post divorce.
6. Any award of maintenance under subdivision six of this part.
Implication : courts should integrate an overall financial award. In other words, equitable distribution should not be done with blinders on, without considering the maintenance awarded.
For instance, a court will award money to one spouse per month for support purposes (alimony), and thus may not give an equal share of the marital assets maybe 70-30 percent share instead of 50-50.
7. Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party.
Implication: a spouse’s direct and indirect contributions should be taken into consideration in equitable distribution. This is the so called: “Economic Partnership” factor
Factor 7 and particularly, a spouse’s lack of direct and indirect contributions is often cited by courts as the basis for an unequal distribution of assets. Arguably, more reported cases which grant an unequal distribution of assets rely upon Factor 7 as justification for the unequal distribution than any other statutory factor.
Thus, where one party was the sole wage earner in a long term marriage yet the other party was a full-time parent and homemaker, an equal distribution of the assets was warranted (economic partnership).
For example, one spouse stayed home or worked a part time job, and could maintain the house and raise the children eliminating the need for a cleaning service and child care which can be expensive. That is a benefit the courts will assign an economic number.
8. The liquid or non-liquid character of all marital property.
Implication: One spouse should not end up with all of the liquid assets while the other receives all of the non-liquid assets. One receives money, and the other receives real estate holdings that need to be sold at a future date.
9. The probable future financial circumstances of each party.
Implication: the party with the less bright financial future may be entitled to a greater share of the marital assets. For example, one spouse is a doctor and the other spouse does not have a professional eductation so the courts will give more of the marital assets to that
10: The impossibility or difficulty of evaluating any component asset 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.
This factor ties in with DRL 236 (B) (5) (e) which authorizes courts to grant distributive awards in lieu of an actual distribution of a particular asset. Example, spouse owns an accounting firm or other professional practice
Implication: courts can take into consideration tax consequences in formulating equitable distribution.
Implication: a spouse should not be rewarded for wastefully dissipating assets. Like Factor 7 (direct and indirect contributions), Factor 12 has also been cited in numerous cases as justifying an unequal distribution of assets. I.E. not making mortgage payments and allowing the marital home to go into foreclosure.
13. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.
Implication: the transfer of assets made in contemplation of a matrimonial action will be remedied in the equitable distribution process. This factor is similar to Factor 12 (wasteful dissipation), in that a party’s economic fault may be a basis for awarding an unequal distribution of assets. Example, Husband owns a classic car and gives it to a buddy for below fair market value. The court can assign the fair market value and make the award to the other spouse accordingly.
14. Any other factor which the court shall expressly find to be just and proper.
Primary consideration under this “catch all” factor: marital fault. Marital fault generally will not affect equitable distribution unless it is “egregious.” Egregious fault has been defined as the type of conduct which “shocks the conscience of the court.” Mere adultery has been held as to not be egregious for the purposes of equitable distribution.
When faced with or contemplating a divorce, it is important to consider all these factors. Please feel free to contact my office to discuss how to identify and consider the ramifications of each of these fourteen factors in your personal situation.