Equitable does not mean equal

In New York, the Courts are required to “equitably” distribute all marital assets. (DRL 236B). Despite the relative abundance of case law citing to the proposition that, “Equitable distribution does not necessarily mean equal distribution” (Evans v. Evans, 57 A.D.3d 718, 870 N.Y.S.2d 394; Groesbeck v. Groesbeck, 51 A.D.3d722, 858 N.Y.S.2d 707); Falgoust v. Falgoust, 15 A.D.3d 612, 790 N.Y.S.2d 532), for practical purposes, a 50-50 distribution is generally presumed in a long term marriage, particularly for settlement purposes. 1

It is evident that compelling facts must be presented to the Court in order to achieve a deviation from the unofficial presumption of a 50-50 distribution. However, even in those cases where such compelling facts are presented, the deviation from an equal distribution is rarely substantial. Moreover, it is difficult to distinguish those facts that will warrant a substantial deviation from the 50-50 standard as opposed to a slight or modest deviation. The Courts have deviated from the 50-50 standard in circumstances where one party has made substantially greater contributions to the marriage than the other. Cases falling under this category frequently involve one party acting as primary wage earner, while also assuming the bulk of the standard and customary domestic duties.

In Glassberg v. Glassberg, 2009 N.Y. Misc. LEXIS 2436, 241 NYLJ 84, decided on April 15, 2009, this writer argued to the Suffolk County Supreme Court that the plaintiff wife should receive more than 50% of the marital estate (the bulk of which was comprised of the marital residence and the wife’s retirement assets), where the wife worked full-time as a teacher throughout the almost 20 year marriage and handled virtually all of the customary household and child rearing duties with minimal assistance from the husband. The husband was disbarred as an attorney during the marriage for escrow violations, resulting in the loss of his law practice, and thereafter worked several jobs on an inconsistent basis (some menial despite his advanced education and one as a teacher from which he was fired for misconduct), making minimal contributions to the marital partnership. In addition to financial stressors (which required the wife to partially support the family by depleting her separate property inheritance for a period of time), the marriage was further marred by the husband’s extra-marital affairs, his estrangement from the family (including the parties’ son), and the several occasions during which he absented himself from the marital residence for extended periods of time.

After trial, the Supreme Court, Suffolk County (Cohen, J), held that the wife was entitled to receive 65% of the net proceeds of the sale of the marital residence and 65% of the retirement assets accumulated by her during the marriage in recognition of the husband’s “limited, sporadic, unreliable and inconsistent” support of the marriage. As such, the Court clearly recognized that the marriage was not a partnership that was contributed to equally by the parties, either economically, or on the domestic front.

It was also argued to the Court by this writer that the wife was entitled to greater than 50% of the marital estate based upon the husband’s wasteful dissipation of his law practice – a marital asset of undetermined value – due to the wrongful conduct that resulted in his disbarment during the course of the marriage. While it is often an uphill battle and frequently requires litigation to achieve an “unequal” distribution of marital assets, other Courts have found similarly where the parties did not make equal contributions to the marital partnership.

In Evans v. Evans, 57 A.D.3d 718, 870 N.Y.S.2d 394 (2nd Dept. 2008), the Second Department affirmed the determination of the trial court which awarded plaintiff only 15% of the value of the marital residence and 10% of the defendant’s pension. Although the factual basis for the underlying determination was not provided, the Appellate Division noted that the trial court had properly exercised its discretion in light of the fact that plaintiff had contributed “minimally” to the marriage. One is, of course, left to wonder how minimal these contributions actually were in order to justify such a deviation.

In Hathaway v. Hathaway, 16 A.D.3d 458, 791 N.Y.S.2d 631 (2nd Dept. 2005), the Court affirmed an award of 70% of the marital assets to the wife. The parties had been married for 33 years. Although the Husband devoted significant time to the children’s education and activities, he refused to work. The wife was the sole wage earner, performed substantially all of the usual and customary housekeeping duties, and was equally involved with the upbringing of the children. The Court found that the husband’s contribution to the marriage was minimal.

In Naimollah v. DeUgarte, 18 A.D.2d 268, 795 N.Y.S.2d 525 (1st Dept. 2005), the Court affirmed an unequal distribution of marital assets, holding that where the spouses’ contributions to a marriage are unequal, that the marital assets need not be equally divided.

In K. v. B., 13 A.D.3d 12, 784 N.Y.S.2d 76 (1st Dept. 2004) the Court affirmed an award of 65% of the marital estate to wife. The parties to this case had agreed prior to their marriage of 20 years to an unorthodox arrangement whereby they would reside in separate counties. Despite this agreement, the Court noted that Wife worked full time throughout the marriage, provided the lion’s share of the family’s financial support, and raised the children virtually alone. The Court found that the Husband “gave very little, both financially and domestically, to his marriage and family,” and that when the wife ran into financial difficulties, the Husband “refused to step up to the plate and offer any assistance, be it financial, emotional or otherwise.” The Court concluded that an unequal distribution of marital assets was justified, not for punitive purposes, but as a “factually supported reflection of the actual contributions” made by each party to the marriage.

In Sade v. Sade, 251 A.D.2d 646, 675 N.Y.S.2d 119 (2nd Dept. 1998), the Second Department found that the trial Court’s equal division of the marital estate was not equitable where the wife was not only the sole wage earner during the marriage, but also performed the usual and customary household duties during the relationship. The Order of the Trial Court was modified so as to award the wife 80% and the husband 20% of the marital estate.

In Balsamo v. Balsamo, 200 A.D.2d 649, 608 N.Y.S.2d 7 (2nd Dept. 1994), the Second Department upheld an award of 70% of the marital estate to the wife where it found that the wife was the principal wage earner and performed substantially all of the customary household duties during the marriage.

The Courts have also supported an unequal distribution of marital assets based upon the economic fault of one party. These cases generally involve the dissipation or hiding of assets by one of the spouses.

In Mattwell v. Mattwell, 194 A.D.2d 715, 600 N.Y.S.2d 98 (2nd Dept. 1993), the Court justified an unequal distribution of the marital estate based upon the fact that he dissipated and secreted marital assets. Notably, the Court found it virtually irrelevant that the wife had achieved considerable career and economic success during this almost 40 year marriage, while the husband was a “relative economic failure” by reason of a failed business venture. The Court reasoned that the good economic judgment of one partner is a common benefit and similarly, the bad economic judgment of another partner must be considered a liability.

In Farkas v. Farkas, 251 A.D.2d 4, 672 N.Y.S.2d 714 (1st Dept. 1998), the First Department found that the Trial Court’s distribution of all of the known marital assets to the wife was supported by the record, including evidence that the husband had repeatedly and wilfully disobeyed interim support orders and dissipated marital assets.

However, while economic fault may be a consideration in equitable distribution, marital fault generally is not. In Kaur v. Singh, 44 A.D.3d622, 843 N.Y.S.2d 350 (2nd Dept. 2007), although the Appellate Division affirmed the determination of the Trial Court, it found that the Trial Court had improvidently exercised its discretion in making marital fault a factor to be considered in awarding plaintiff 75% of the marital assets. The Court held that marital fault is not a consideration under the Domestic Relations Law unless it is so “egregious” and “shocking” that the Court is compelled to invoke its equitable powers to ensure that justice is done. However, the Appellate Division found ample evidence of economic fault on the part of the defendant to justify the distribution of assets made at the trial level.

In childless marriages of short duration, an unequal distribution of assets is more common. In Arrigo v. Arrigo, 38 A.D.3d 807, 834 N.Y.S.2d 534 (2nd Dept. 2007), the Appellate Division found that it was not error to award the husband only 25% of the marital assets where the marriage was of relatively short duration, the parties were relatively young and healthy, there were no children of the marriage, and the husband’s economic contributions to the marriage were minimal.

Clearly, the Court has great discretion in fashioning an award of equitable distribution. However, as the standard for determining what facts will constitute an “unequal contribution” to the marital partnership is so subjective, it is difficult to assess how extreme the circumstances must be in order to justify a deviation from the 50-50 standard. Moreover, if such circumstances are established, case law does not provide clarity as to how far from that 50-50 mark the court will deviate.

Debra L. Rubin, Esq. is the Senior Partner in the Commack law firm of Rubin & Rosenblum, PLLC and concentrates in the area of matrimonial and family law.

1. Assets excepted from this presumption included enhanced earnings, businesses and professional practices.