EQUITABLE DISTRIBUTION AND SOME COMMON DIVORCE ISSUES
Equitable distribution recognizes a home-maker spouse as a contributing partner entitled to a share of the marital assets based on his/her non-economic contributions as a spouse, parent and homemaker. Note: "Equitable" does not necessarily mean "equal," though frequently in marriages of long duration (10 to 20 years) the court will distribute the marital assets to the spouses in equal shares.
A number of satellite matters orbit around the central issue of equitable distribution in a contested divorce. They typically involve the following: (a) Disposition of the marital residence and all other real property, regardless of location; division of pension and other retirement/deferred compensation benefits; division of assets such as money in bank accounts, stocks, bonds, mutual funds, any equity in property owned by the parties, motor vehicles, furniture, jewelry; and (b) division of marital debts and liabilities such as mortgage(s), credit card debts, consumer loans, student loans, taxes owed; car payments and insurance; and division of the enhanced earning potential of a spouse resulting from his/her obtaining an advanced degree.
Note: Prior to 2015, New York was the only state in the United States to award a monetary amount for a spouse's professional license and professional practice (see Holterman v. Holterman, 3 NY3d 1). However, under new legislation enacted by New York State in 2015, it is now the law that a spouse’s professional degree and professional license obtained during the marriage are no longer treated as marital assets subject to equitable distribution upon divorce.
The parties in a contested divorce (i.e., where one spouse is opposing the divorce for some reason) are required to provide each other and file with the Court a Statement of Net Worth (total assets and liabilities). The Net Worth Statements are an important part of figuring the value of a business or profession for purposes of equitable distribution. Thus, if the business or practice is just keeping afloat (e.g., because it is new) or if it is highly profitable, it will affect equitable distribution. If the business or practice is profitable, the attorney may "trade" that spouse's interest in the business for another marital asset, such as the marital home or a savings account of comparable value.
Procedure. A divorce case must be filed in the state Supreme Court. In addition to its exclusive jurisdiction to hear divorce cases and adjudicate the distribution of marital assets, Supreme Court also adjudicates ancillary issues incident to a divorce proceeding such as spousal support (formerly called "alimony"), child support, custody and visitation.
Family Court, by contrast, cannot entertain divorce or equitable distribution matters. All non-divorce family issues are dealt with in Family Court-B even between married couples. Supreme Court sometimes refers child support, custody, and visitation issues to Family Court for determination during the pendency of divorce proceedings. Note: While an unmarried custodial parent may petition family court for child support, he or she cannot seek support or "maintenance" for him/herself from the non-custodial parent in any court.
It should be sufficiently clear from the above summary that a person facing divorce proceedings would be well advised to avail him/herself of a skilled and competent lawyer as s/he attempts to navigate the complexities of New York Divorce law.