In 1980, New York law totally reformed the way divorcing spouses divide their property, departing from the centuries-old “title-based” division that required the court to divide property solely based on in whose name the property was titled. Since that reform, courts divide property based on what is called “equitable distribution”, which in New York is not the same as equal distribution. The court determines which party should keep particular items of property based on whether property is “marital” (acquired during the marriage) or “separate” (acquired either prior to the marriage or by gift, inheritance of personal injury recovery during the marriage), The Court is required to base its determination on 14 stated factors, the 14th of which is a so-called “wild card” factor – “any other factor the court [finds] just and proper.”
Maintenance – New York’s term for “alimony” or “spousal support” – may be awarded by a court or agreed to by the parties themselves to enable a spouse who is unable to be self-supporting at the time of the divorce to become self-supporting. The law anticipates the recipient receiving support consistent with the marital lifestyle and the parties’ financial means for a short or long duration, again, based on the particular facts of the case. New York does not have any statutory guidelines for how to determine maintenance except for “temporary maintenance” to be paid during the pendency of the action. In all of our cases, whether we represent the monied spouse, or the less-monied spouse, we strive to maintain the marital status quo, in order to enable the parties to focus on the long term solution to the issues at hand, rather than being bogged down on issues that will only pertain to the short term. However, sometimes that is not possible, and we do not hesitate to apply to the courts to redress the problem if the other party is taking steps to significantly alter that status quo to our client’s or the children’s detriment, as unfortunately happens in many cases. Members of our firm have litigated landmark temporary support cases going back to the 1980s.
Our cases routinely involve complex financial, valuation and tax issues relating to support and the parties’ assets. New York law requires the distribution of all types of assets including but not limited to businesses of all kinds, professional degrees, licenses, and practices, which require the valuation of what is referred to as “enhanced earning capacity”, corporations, partnerships of all kinds, all kinds of deferred compensation, such as stock options, restricted stock, real estate interests (both simple and complex), and the tracing of separate property arguably exempt from distribution. Depending on the facts, the law also allows a party to argue for or against a 50/50 distribution.
Over the past 35 or so years, the courts have greatly expanded the meaning of the statute, prompted by smart lawyers raising arguments based on different factual scenarios arguing for or against adjusting the law to meet fact patterns not anticipated or addressed by the statute and its amendments or prior case law. One of the primary reasons clients seek seasoned, experienced lawyers to guide them through their divorce is the need to understand the statutory scheme and all of the changes that have occurred over these three plus decades. Our attorneys have “been there” since the inception of the statute, through all of the reforms, and can tell clients how this complex law fits their circumstances.