Equitable Distribution Isn’t Necessarily Equitable Distribution

Many people believe that when you get divorced, especially after a long term marriage, your assets are split equally.  This is not true.  New York is an equitable distribution state, meaning that equity, or fairness, will decide how assets are to be split.  Who determines what’s fair or equitable? Well if the parties cannot amicably settle their dispute and come up with an accommodation between them, the Court will make that determination.   If you leave it to the Court, you may or may not get what you deem is appropriate at the parties in Cornish v. Cornish recently discovered.

The parties in the Cornish matter were married in 1991 with three children.  The wife was the monied spouse in this case and the husband was awarded, amongst other things, 30% of his wife’s pension, vice 50%.  He was also awarded 50% of the parties credit card debt.   The husband appeals seeking to modify the trial Court’s ruling increasing his share of the wife’s pension to 50%.  The first thing the husband needed to realize is that the Courts are accorded substantial deference in determining what distribution of the marital property is equitable.  Note the equitable standard which is based upon considerations of fairness and the respective situations of the parties.

The trial Court looked at the marriage.  Here, the husband was a stay at home father.  However, as the wife testified, the once the children reached school age, the wife implored the husband to find employment, which he declined despite the financial difficulties the family faced.  In addition to his refusal to earn a living and contribute financially to the family, it was ascertained that husband was an alcoholic and his alcoholism was contributing to his ability to find employment.  Additionally, the husband had inherited money.  Instead of using this money to assist the family, the Court found that he wasted his inheritance and in a few short months, it was gone.  Finally, the Court did not find the husband’s testimony regarding his job search credible.  Thus the Court, taking all of this into consideration, believed it was only fair that 30% of the pension go to the husband vice 50%.

In the same vein, the Court determined that the family’s finances were compromised by their use of credit cards to pay for family expenses.  However, the Court also found that the credit card was not only used for daily expenses, but that the husband used the cards for unnecessary expenses unduly burdening the already precarious family financial picture.  As a result, the Court awarded half of the debt to the husband.

Your behavior during the marriage is important when it comes to equitable distribution.  Keep in mind that marital property is divided between the parties and that not only will the Court divide property/assets, it will also divide liabilities. If you have a spouse, like in this case, who is wasting marital assets coupled with refusing to contribute to the marriage, the Court will take that into consideration when determining how to fashion an equitable distribution award.

Litigating a Matrimonial Case

When seeking a divorce, you should always attempt, in good faith, to settle your matter if possible.  By entering into a separation agreement, you are able to control some if not all of the terms.  If settling is not possible, then you are leaving your fate to the Court.  Lets look at the recent case of Musacchio v. Musacchio, which the appellate division recently decided on June 27, 2013.

Here the parties were unable to settle and went to trial.  They were married in 1990 with three children.  If you are a follower of my blog posts, you know by now,  in a custody battle normally, a law guardian is appointed to represent the best interests of the children.  While appointing a law guardian is strongly encouraged such an appointment is discretionary and not mandatory.   In this case, the Court decided not to appoint a law guardian.  Without a law guardian the court must decide custody without the benefit of an attorney representing the children.  The wife in this case was awarded physical custody of the children. The Court relied on all relevant factors including the parents’ ability to provide a stable home environment for the children, the children’s wishes—though without a law guardian one can only surmise what their wishes are after perhaps through questioning by Court and having them put in the uncomfortable position of choosing—the parents’ past performance, relative fitness, ability to guide and provide for the children’s overall well-being, and the willingness of each parent to foster a relationship with the other parent.   In this case, the wife was a stay at home mother and the husband worked long hours in the financial industry with frequent travel.

When it came to distributing the property, the Courts fashioned a distribution which was not necessarily 50/50.  When you leave it to the Court to distribute assets remember that there is no requirement that the distribution of each item of marital property be on a equal or 50/50 basis.  A trial court has substantial discretion to fashion awards based on the circumstances of each case and the determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors.  In this case, the Court considered the  needs and circumstances of the parties.  Here the husband made over $200,000.00 a year while the wife barely made $10,000.00.  While the Court did not list the equitable distribution award, I am hard pressed to think, after the rationale given by the Court, that the husband and wife split all the assets 50/50.

Finally, the Court awarded maintenance to the wife for seven and half years.  The Court considered the parties’ financial circumstances, their respective ages, the length of their marriage and the wife’s loss of income while she was a stay at home mother, and the wife’s ability to increase her earning potential taking into account her age and prolonged absence from the work force.  In other words, maintenance was left up to the Court.  Unlike the temporary maintenance formula, there is lacks a guide that one can look to even attempt to figure out what, if any maintenance will be awarded and for how long.

As you can see, if you and your spouse cannot come to a settlement, the Court will decide.  Once the Court decides, if the decision is supported by the evidence presented at trial and well-reasoned, it is unlikely that the awards will be disturbed.

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