by: Jeremy D. Morley
In New York, the judge has a broad power to make a fair property distribution. These are the 13 factors that the judge should consider:
Factor 1. The income and property of each party at the time of the marriage, and at the time of the filing for divorce. The judge should look at each spouse?s capacity to earn money and property at the time of the marriage and compare it to the situation currently. Whichever spouse has lesser earning capacity and less property may be entitled to a bigger share of the marital property, because the other spouse will have an easier time making a fresh start.
Tip: If you know that your financial situation is likely to improve soon, file for divorce right away. Factor 1 appears to prevent the judge from taking into account the situation after the date the lawsuit is started.
Factor 2. The duration of the marriage and the age and health of both parties.
Factor 2 tells the judge to consider three items ? the length of the marriage, the age of the parties and their health condition. The longer the marriage the more likely that that the parties have come to rely on it as an economic partnership. Likewise, an older or less healthy spouse may need more financial security than one who is younger or healthier.
Factor 3. The need of a custodial parent to occupy or own the marital residence and to use or own its household effects.
The judge has great leeway to decide what to do with the parties? home and the contents of the home. The judge can order that the house be sold and the proceeds divided in a designated way. Or he or she could order that the parent with custody of the children be allowed to stay in the home until the children are grown. In joint custody situations, the judge could order the sale of the house and require both spouses and children to relocate.
Factor 4. The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution.
This factor seems to allow the judge to take separate property into account, because separate property would qualifiy for inheritance purposes.
Factor 5. Any award of spousal maintenance.
This factor allows the judge to consider the impact that the payment of maintenance will have on the paying spouse?s financial condition and also on that of the spouse who receives maintenance, so as to make an overall, integrated financial plan.
Factor 6. Direct or indirect contributions to the acquisition of marital property.
The judge should consider any joint efforts or expenditures that led to the parties? being able to acquire property (for example, doing work on a home or using separate property for the down-payment) and any contributions and services as a spouse, parent, wage earner and homemaker, and to the career and career potential of the other party. A spouse who cares for the home and entertains the other spouse?s business clients should have that kind of work given fair consideration. A spouse who works while the other spouse obtains a professional degree is likewise entitled to have that contribution taken into account.
Factor 7. The liquidity of marital property.
Assets can sometimes not be easily sold. Factor 7 allows a judge to take this into account and to order an exchange of property or a credit, instead of requiring that property be sold.
Factor 8. The probable future financial circumstances of each party.
The judge has to make an informed prediction about how each spouse is likely to fare economically in the future and has to take this into account in dividing marital property. In one case, the court awarded 80% of the marital property to the wife because she was uneducated and unable to earn more than subsistence level income while the husband was much more employable. In fact she had a prior criminal record, which the husband had previously accepted. Pagan, 138 A.D.2d 685, 526 N.Y.S.2d 498 (2d Dept. 1988).
Factor 9. The difficulty of evaluating any asset, business or profession, and the desirability of retaining it intact and free from interference.
This factor directs to consider such potential difficulties as that of making an accurate valuation of an asset and that of the spouss interfering with each other concerning a certain asset.
Factor 10. The tax consequences.
The court must consider the tax consequences of any distribution, although it is usually up to the parties to submit evidence to the court as to the tax impact of possible dispositions of the marital property. When a judge directs that certain property should be sold and divided between the spouses, the spouses will usually be directed to share in the resulting tax liability in the same proportion.
Factor 11. The wasteful dissipation of assets by either spouse.
If a spouse wasted the parties? assets, the judge should consider this fact, unless both spouses agreed to the expenditure.
In one case a husband invested the parties? money in questionable tax shelters without input from his wife, resulting in a large tax liability. The court decided that the husband would be exclusively responsible for this tax obligation, because he had dissipated the marital assets. Fiedler, 230 A.D.2d 822, 646 N.Y.S.2d 839 (2d Dept. 1996).
Factor 12. Whether any assets were transferred or encumbered just before the divorce action was started.
This factor deals with the situation where one spouse unfairly disposes of some property in an attempt to gain an unfair advantage over the other spouse. It allows the judge to give a credit to the other spouse in this situation.
Factor 13. Any other factor which the judge finds appropriate.
This is a catch-all factor that allows the judge to take into account any other factor that may be relevant. One frequent question is whether the ?fault? of a husband or wife can be considered. The rule is that ?marital fault?, meaning conduct that hurts the marriage or that causes a marriage to end, should not be considered. This is partly because the issue of who did wrong in a marriage is not appropriate for a court to consider. An exception is if the fault is absolutely shocking to the conscience of the court, such as attempted murder. On the other hand, a judge may consider ?economic fault?, meaning the taking of actions that hurt the economic partnership between husband and wife.