What is Equitable Distribution?
Equitable distribution is the equitable, or fair, distribution of the marital assets. Equitable distribution arises during a divorce (most commonly), or when the parties formally separate and enter into a Separation and Settlement Agreement. Although sometimes the assets are divided evenly between the divorcing spouses, this is not always the case. Sometimes, one of the spouses receives more than 50% of the marital assets, and, correspondingly, the other spouse receives less. It is sometimes determined that one of the spouses is entitled to more assets, or a spouse receives more assets in lieu of Spousal Support or Alimony, or for a reduced amount of spousal support. A custodial parent sometimes gets the right to exclusively occupy the marital residence if the parties have sufficient finances and income to do so.
Determination of Equitable Distribution
If the parties cannot agree on the terms of marital property division in a Divorce, the court will make an equitable distribution decision based on the available facts, testimony, and circumstances. The court has the authority to order the sale and distribution of assets. The factors affecting equitable distribution include:
- Prenuptial or Postnuptial Agreements between the parties.
- Identifying marital property.
- Identifying separate property at the time of and during the marriage and possible commingling of separate property.
- Spousal Support amount and duration for the receiving party.
- Valuation of businesses and necessary involvement of the parties in the businesses.
- Marital debts of the parties and satisfaction or assumption of the debts.
- Wasteful dissipation of marital assets by either spouse.
- Transfer or encumbrance of assets by either spouse in contemplation of divorce.
- Tax consequences of equitable distribution for each party.
Without the agreement of the parties, it is not always easy to determine what is marital property, subject to property division, and what is separate property. A skilled lawyer can help you navigate this issue and protect your rights with regard to the assets, whether they are marital or separate. After spending years (or a lifetime) of building financial security and stability, you cannot afford to lose everything you have worked for so hard.
Contact experienced New York Family Law attorney Leonid Mikityanskiy at our Brooklyn, NY office at (718) 256-3210 to discuss your equitable distribution issues today.
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