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S2973Senate2009-2010 SessionSame asA6194

Includes within marital property for purposes of equitable distribution, transfers or encumbrances of marital property in contemplation of a matrimonial action

Sponsor John L. SampsonSD-19Affects Legal
Status
In Senate Committee
Judiciary
Impact
Pending
Passage
Pending

Bill progress

Step 2 of 7

In committee · Judiciary

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Who cares

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Sponsors

Primary sponsor
John L. Sampson

Senator · Senate District 19

No co-sponsors yet.

History

  1. Referred to judiciary
  2. Referred to judiciary

Companion bill

Full text

The text isn't available here yet. Check nysenate.gov.

Sponsor's memo

Title of bill

An act to amend the domestic relations law, in relation to the definition of marital property

Purpose or general idea of bill

To include in marital property subject to equitable distribution upon dissolution of the marriage all property transferred or encumbered in contemplation of a matrimonial action without a fair consideration.

Summary of specific provisions

Domestic Relations Law Sec. 236 B 1 c. is amended to expressly include in the definition of marital property any property transferred or encumbered in contemplation of divorce without a fair consideration. Any property transferred or encumbered within two years of the commencement of a matrimonial action is presumed to be in contemplation of a matrimonial action, if it is made without fair consideration.

Effects of present law which this bill would alter

Present law does not include transfers not for value in marital property. The only reference to transfers within two years of the commencement of a matrimonial action is that a patty must disclose all transfers not in the ordinary course of business pursuant to domestic relations law sec. 236 B 4.

Justification

Under current law, it is possible for one spouse to dissipate marital assets in contemplation of a matrimonial action, thereby preventing the other spouse from receiving an equitable share of the marital property. Clearly, this was the situation in JOLIS V. JOLIS. 111 Misc.2d 311, where the wife was denied a share in property in Arizona purchased by the husband shortly before the commencement of the matrimonial action and placed by him in the name of a paramour. The problem of such transfers is analogous to the situations which existed prior to 1966 in the spouse's right to elect against the will of the other spouse under the estates law. Prior to 1966, the right of election was restricted to those assets which passed under a decedent's will. A decedent, therefore, could defeat a spouse's right of election by transferring property while living, resulting in no, or a diminished estate. Similarly, by transferring assets prior to or after the commencement of a matrimonial action, without adequate consideration, and other than in the regular course of business, marital property could be diminished. The post 1966 right of election (EPTL sec. 5-1.1) expands the definition of "net estate" to include testamentaty substitutes including: gifts in contemplation of death; joint bank accounts; Totten trust; property held in joint tenancy; and property held in tenancy by the entirety. This expansion of the right of election increases the assets which would be part of the decedent's estate against which the surviving spouse may exercise the right of election. Thus, there are precedents in New York for the recapture of transferred property. Clearly, one spouse should not be permitted to defeat an equitable distribution by fraudulently transferring marital assets prior to or after the commencement of a matrimonial action. The outcome in the JOLIS case should not be repeated.

Prior legislative history

New Bill.

Fiscal implications for st ate 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 such date.

Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.