Equitable distribution is a legal principle that guides courts in dividing marital property during a divorce in New York. Unlike in community property states, where assets are generally split 50/50, New York aims to divide property fairly but not necessarily equally. A court considers various factors, mostly having to do with each spouse’s resources, needs and contributions to the marriage.

Equitable distribution will also take into account certain negative conduct by either spouse that could have harmed the other spouse, whether or not it affected the total amount of marital assets available. Such conduct could include the following:

1. Wasteful dissipation — This means the squandering, depletion or reckless spending of marital assets by either spouse for non-marital purposes. It can involve spending marital funds on extravagant gifts, vacations, gambling or other expenditures that don't benefit the marriage or the other spouse. The court will assess the timing, amount and purpose of the spending and may reduce the dissipating spouse's share of the remaining assets to compensate for the loss.
2. Transfers or encumbrances prior to divorce — If either spouse sells, gives away or heavily borrows against marital property in anticipation of a divorce, it may be considered a fraudulent conveyance. These assets can be clawed back into the marital estate so that they can be fairly divided.
3. Domestic violence — A spouse who has been a victim of physical or emotional abuse may be entitled to a larger share of the marital assets or to other compensation for the impact of the harm. The court considers the nature, extent and duration of the abuse.
4. Egregious conduct — This refers to actions that are morally reprehensible in nature, such that they shock the conscience of the court. They could include extreme cruelty, abandonment, substance abuse or criminal activity. The court may use its discretion to adjust the distribution of assets to account for the impact of such conduct.

Note that adultery committed by either spouse does not by itself fall into any of the above categories. New York divorces are now granted on a no-fault basis, so adultery need not be pleaded or proved. A spouse’s carrying on an extramarital affair is not considered egregious conduct. However, the affair may be relevant to the extent that it involves wasteful dissipation of marital assets.

Equitable distribution laws are meant to be flexible. A court has discretion to weigh all positive and negative factors to arrive at a fair result. Making a convincing case that you deserve a greater share of assets or that your spouse deserves less requires a thorough and skillful presentation of evidence.

Bombardo Law Office, P.C. in Syracuse assists Central New York residents with all aspects of divorce, including division of marital property. To schedule a free initial consultation, call 1-315-488-5544 or contact me online.