It has long been the law in New York that equitable distribution (the division of marital assets by the court) does not equate to equal distribution. The courts must obey the statute and consider the enumerated factors below to reach its determination, setting forth their reason to do so.
- the income and property of each party at the time of the marriage and the time the action for divorce is started
- the duration of the marriage
- the age and respective health of each of the parties
- the loss of inheritance and pension rights, if any
- any award of maintenance that has been made by the court
- direct or indirect (spousal contributions) efforts made to the acquisition of marital property by the party not in title
- any other factor the court expressly finds to be just and proper
Of course the court must explicitly set forth each factor considered, and the effect that such consideration had on its ruling. In this recent case, the Appellate Division 2d Department (the appellate court that reviews the determination of the lower court if an appeal is properly filed) in Henery v. Henery, 2013 NY Slip Op 02540, directed that the entire ownership to the marital residence should be given to the wife. His reason for doing so were enumerated and included the fact the transfer was called for because it had not awarded maintenance or counsel fees to the wife. It added that the wife's parents had satisfied the mortgage, the wife had made contribution to the expenses of the parties and made other financial sacrifices, the loss of retirement benefits because of the husband's discharge at work was caused by his wrongful conduct, and her waiver of counsel fees. The court ruled that these contributions exceeded her husband's share in the equity of the marital residence.
It is very rare for the courts to reach such result so the case should not be relied upon if you appear before the court and ask that the entire marital residence be awarded to you. If the facts in your case could be as compelling as those in Henery, you may get a similar result. Bear in mind, however, that although a precedent, it has limited value unless you appear before a judge with almost identical arguments….which infrequently may be the case. Nevertheless, it remains authority for its specific holding.
