Delay tactics and Equitable Distribution

by / 0 Comments / 225 View / November 25, 2007

One question I get asked quite frequently is: if my spouse plays games in the divorce, can the court punish he/her by giving me the house?


To put that question is legalese: can the court alter the equitable distribution award if it finds that the spouse has been non-compliant or engages in frivolous conduct?


Recently, the Appellate Division for the First Department has answered in the case of Warner v. Houghton.


Under the New York Domestic Relations law, when making an award of equitable distribution the court must take in account the statutory factors found in section 236 B. The courts must consider these statutory factors when announcing the award. The factors are:


c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the court shall consider:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13) any other factor which the court shall expressly find to be just and proper.


Turning to the Warner case, husband clearly was playing games. The husband fired his attorneys at least twice and failed and refused to attend a number of court conferences. Perhaps the straw that broke the camel’s back was his refusal to attend the inquest. Since the wife was unopposed at the inquest, the judge granted her everything she asked for.


The Appellate Division noted that “[w]hile the defendant’s conduct bordered on the contemptuous, the equitable distribution award must still be justified on the record, and should be supported by the specific finds [in the New York Domestic Relations Law].” The court cited an 1986 decision, Capasso v. Capasso, 119 AD2d 268, which held “that an insufficient explanation for the court’s distribution of property requires reversal of the judgment and remand for further consideration.”


The lesson of this case is that mere bad conduct may not be enough to allow the divorce court to alter the balance in an award of equitable distribution.

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