Establishes presumption that marital property be distributed equally except upon sufficient evidence to establish otherwise; repealer

BILL NUMBER:A6132 REPLACEMENT 5/21/10

Title of bill

An act to amend the domestic relations law, in relation to distribution of marital property; and to repeal paragraph c of subdivision 5 of part B of section 236 of such law relating thereto

Purpose of bill

To reform New York divorce law by creating the presumption that marital property is to be divided equally.

Summary of specific provisions

Current law gives the court power to distribute marital property "equitably" and places minimal limitations on the court's discretion. This bill amends section 236 B 5 (e) and (d) of the domestic relations law to require that marital property be distributed equally unless the party presents evidence to establish that the distribution should be other than equal based on the 13 factors in the present law. The post-divorce standard of living of the parties is added to the factors to be considered by the court.

Justification

Increasingly, marriage has come to be viewed as an economic partnership. As such, absent contrary agreement by the parties, there should be a presumption that property acquired during the marriage is to be divided equally. The current law which provides for "equitable" distribution of marital property suffers from several significant deficiencies. First, the statute gives very little guidance to a judge or, indeed, to the parties, as to how marital property should be divided. As a result cases vary substantially in the determinations made.

Secondly, since the "equitable distribution law was enacted in 1980, experience has shown that the non-income producing or lower income producing spouse is often at a significant disadvantage in property awards. Without the statutory requirement of equal distribution, the courts have continued to regard the wage earning spouse's contribution as greater than the homemaker's contribution. Little or no weight is given to non-economic contributions, such as the services of the homemaker, which are difficult to measure. Even where the spouse has made direct contributions to the family business, she has often fared no better.

A presumption of equal will give a clear bench mark to judges and parties, and therefore, create more uniformity and greater fairness in the distribution of Marital property. There is no bar to the award of 50% to the economically weaker spouse, nor is there any legislative intention of changing the frequent current practice of awarding possession of the marital residence to the custodial parent until the children are emancipated.

Legislative history

2009; A.6132 A.Judiciary 2008; A.3089 - A. Judiciary 2007; A.3089 - A. Calendar 2005-06; A.5942- A. Calendar 2004; A,7867/S.3740- A. Calendar/S, Judiciary 2003; A.7867/S.3740 - A. Calendar/S. Judiciary 2001-02; A.7797/53849- A. Calendar/S. Judiciary

2000; A.36031S,1309 - A. Calendar/S. Judiciary 1999; A.3603/S.1309 - Passed Assembly/S.Judiciary 1998; A.5925 - A. Calendar 1997; A.5925 - Passed Assembly 1995-96; A.2493 - Passed Assembly 1993-94; A.3936 - Passed Assembly 1991-92; Same as A.3894 - Passed Assembly 1989-90; Same as A.2901 - Passed Assembly 1987-88; Same as A.2594-A - Passed Assembly 1985-86; Same as A.175 - Passed Assembly 1979-80; Similar to A.8211-A. Judiciary

Fiscal implications for state and local governments

None

Effective date

This act shall take effect immediately and shall apply to any action or proceeding pending on or commenced after the effective date.