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Equitable distribution: What does it really mean?

On Behalf of | Jun 24, 2024 | Firm News

Property division is often one of the most challenging aspects of divorce. New York follows an equitable distribution model when dividing marital property in divorce.

This generally means that marital property is divided fairly. This does not always mean divided equally, but rather, divided in an overall manner that achieves the fairest outcome for both spouses.

Marital and separate property

Before property can be divided equitably, it must be classified as marital or separate property. Marital property is property acquired by you and your spouse during the marriage, except for gifts or inheritances.

Separate property is property that you or your spouse held prior to your marriage that has remained separate and not mixed with any other marital property. Classifying property as marital or separate can be complex and take time, but once it is completed, your marital property can be equitably divided.

You and your spouse can agree on how to divide your marital property. If you cannot agree, the marital property will be equitably divided through a court order.

However, even if you and your spouse resolve marital property division yourselves, a court may still review your agreement to make sure it is equitable to both of you.

Equitable distribution factors

The court considers several equitable distribution factors. Some of these factors include:

  • Age and health of the spouses
  • Each spouse’s income and property at the start of the marriage and time of divorce
  • Whether one spouse was wasted marital assets

Evidence that a spouse has wasted marital assets could result in an unequal division that a court still considers fair. For example, a spouse may be awarded a higher share of marital property if evidence shows that the other spouse gambled away other valuable marital property, such as retirement funds.

The court also examines the type of property itself, such as liquid property, which can be converted to cash, versus non-liquid property. Another important factor is any anticipated future event that can impact one spouse’s financial circumstances.

Perhaps the most equitable, or fairest, solution is equally dividing your marital property, but you expect to receive a six-figure inheritance within the next year. A court could use that fact to justify giving your spouse a higher share of marital property.

Children or custody issues are considered if one spouse is living in the marital residence. The need for children to be in a familiar environment could cause a court to award the marital home to the spouse living there with the children.

These are just examples of a few factors that courts consider. There are 13 total factors. Additionally, the law states that the court may still consider any other factor that would allow a fair outcome.

What factors are not considered

Infidelity, cruelty or poor behavior on the part of one spouse are not factors considered in equitable distribution, although they may be considered in custody or alimony decisions.

This is sometimes a hard concept to accept, because divorce often involves difficult emotions, such as anger, sadness and fear.

However, your marriage is unique and unlike anyone else’s. Courts recognize this and attempt to tailor an equitable division order based on the specific circumstances of the spouses. It is important to remember that the law gives you the right to a fair outcome.