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Kathleen Donelli, White Plains lawyer, Equitable Distribution

SURVIVOR'S LAW PROJECT

CLE PROGRAM

'EQUITABLE DISTRIBUTION"

Presented By:

Kathleen Donelli, President of the Westchester Women's Bar Association

McCarthy, Fingar, Donovan, Drazen & Smith, L.L.P.

11 Martine Avenue

White Plains, New York 10606

I. Initial Interview

II. Factors In Determining Spouse's "Equitable Share"

1) Statutory

2) Egregious Fault

III. Marital v. Separate Property

1) Definitions

2) Burden of Proof

3) Commingling and Transmutation

- Financial Accounts

- Marital Residence

4) Active v. Passive Appreciation

IV. Date of Valuation

V. Retirement Benefits

1) Defined Benefit v. Lump Sum

2) Qualified Domestic Relations Orders

3) Disability

VI. Licenses and Degrees

VII. Bankruptcy

VIII. Expert Valuations

1) Real Property

2) Pensions

3) Businesses

IX. Tax Impacting

I. Initial Interview: Develop Information and Strategy With Client

1) Client Information Sheet

2) Statement of Client's Rights and Responsibilities

3) Client's Concerns:

a) domestic violence

b) temporary custody

c) pendente lite support

d) exclusive occupancy

e) minimizing risks: credit cards, lines of credit, safeguarding personal property and important documents (e.g., financial, passports, diaries, computer e-mails)

f) insurance: health, life, homeowners, car

4) Grounds

5) Preliminary Conference Requirements

a) Documents

b) Statement of Net Worth

· estimate monthly expenses by using 12-month average

· keep documents used to estimate monthly expenses and to list assets and liabilities (e.g. value as of date of last statement that you should keep)

· footnote relevant information and information you and/or your client "may" forget

ü education - date of degrees and licenses

ü health - spouses and children's special needs: juvenile diabetes; past and future operations; physical handicaps; learning disabilities

ü residence expense is for marital residence, temporary residence, vacation residence, anticipated future residence after divorce

ü anticipated expenses after divorce (e.g. Wife's health insurance)

ü past expenses that currently cannot be paid for (clothing, tutors, gym, vacations, recreation, gifts)

· identify separate property: date of acquisition; source of funds to acquire; trace separate property in a footnote

· identify "purpose" for debt (living expenses; gambling debts; other spouse's unknown purpose)

· fill in transfers, child support, maintenance, need for expert fees to value assets

6) Settlement Agreement v. Litigated

Divorce Judgment

II. Factors In Determining Spouse's "Equitable" Distribution

1) Statutory

RULE: The Court in deciding equitable distribution must set forth the factors it considered in its decision and such requirement may not be waived by either party or counsel. (DRL 236 (B) (5) (g)). The Court must set forth these factors in a clear and comprehensive manner. (Dunne v. Dunne,, 172 A.D.2d 482, 567 N.Y.S.2d 838).

1. The specific factors are found in DRL 236 (B) (5) (d) are as follows:

(a) The income and property of each party at the time of the marriage and at the time of the commencement of the action.

(i) An unequal award of equitable distribution was justified in view of the parties' respective financial circumstances, including the husband's substantial separate property assets. (Glasberg v. Glasberg, 162 A.D.2d 586, 556 N.Y.S.2d 772).

(b) Duration of the marriage and the age and health of both parties.

(i) An eighty percent distribution to the wife of the proceeds from the sale of the marital residence was proper where the wife was forty-­two years old, lacked any formal education and had an inability to achieve financial independence. (Pagan v. Pagan, 138 A.D.2d 685, 526 N.Y.S.2d 498).

(c) Need of the custodial parent to occupy or own the marital residence and to use or own its household effects.

(i) Ordinarily there is a preference to award the custodial parent exclusive use and occupancy of the marital residence. (Leabo v. Leabo, 203 A.D.2d 254, 610 N.Y.S.2d 274).

(ii) The preference that the custodial parent remain in the marital residence may be overcome by proof that alternate housing is available in the general area at a more affordable cost, or the party to remain is incapable of maintaining the home or that either party is in immediate need of the sale proceeds. (Kalisch v. Kalisch, 184 A.D.2d 751, 585 N.Y.S.2d 476; Waldmann v. Waldmann, 231 A.D.2d 710, 647 N.Y.S.2d 827).

(iii) Even where a husband has substantial income, if it would be unduly burdensome to force him to bear the cost of maintaining the home in the face of financial obligations and his child support obligations, the house should be sold. In essence, the need of the custodial parent to occupy the marital residence is outweighed by the financial need of the parties to sell the house. (Lauer v. Lauer, 145 A.D.2d 470, 535 N.Y.S.2d 427).

(iv) Sale of the marital residence was directed where immediate and paramount concerns of providing for the children's college education outweighed the preference for continuing occupancy. (Ricciardi v. Ricciardi, 173 A.D.2d 807,571 N.Y.S.2d 41).

(d) The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution.

(e) Any award of maintenance under sub-division six of this part. (See DRL 236 (B) (6) (a)).

(f) 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 and career potential of the other party.

(i) An equal distribution of assets was proper where the husband was essentially the solewage earner in the course of a nineteen year marriage and the wife was a full-time parent, spouse and homemaker. (Dawson v. Dawson,152 A.D.2d 717, 544 N.Y.S.2d 172).

(ii) Wife's comparatively small financial contributions earlier on in the marriage were held to be very significant since same helped enable the husband to pursue his own education and career opportunities. (Anderson v. Anderson, 153 A.D.2d 823, 545 N.Y.S.2d 335).

(g) The liquid or non-liquid character of all marital property.

(i) It was error to award virtually all liquid assets to one spouse while leaving the other party with only pension interests, the full value of which was not subject to immediate realization. (petrie v. Petrie, 143 A.D.2d 258, 532 N.Y.S.2d 283).

(ii) It was also error to award virtually all marital property to one spouse while leaving the other party with merely a distributive award, the full value of which would not be immediately received and which' might not be received in the future. (Filax v. Filax, 176 A.D.2d 1194, 576 N.Y.S.2d 692).

(h) Probable future financial circumstances of each party.

(i) A distribution in excess of fifty percent was justified upon consideration of all the statutory factors, particularly the probable future financial circumstances of the parties. The likelihood that the husband would continue prosperous growth in his medical practice was compared to the wife's modest financial prospects. (Megally v. Megally, 142 A.D.2d 721, 531 N.Y.S.2d 301).

(i) 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.

(j) The tax consequences to each party.

(i) Where husband failed to present any evidence of tax consequences of distribution, equitable distribution without consideration of tax consequences was appropriate. (Malin v. Malin, 172 A.D.2d 721, 569 N.Y.S.2d 743).

(ii) However, where no evidence of taxable consequences was presented at trial and was only raised in post-trial memos, the Appellate Division, as a matter of discretion, considered the taxable consequences of the equitable distribution since to refuse to do so here would have worked a fundamental injustice on one party. (Teitler v. Teitler, 156 A.D.2d 314, 549 N.Y.S.2d 13).

(iii) Tax Impact: Where husband averred at oral argument that he paid taxes in connection with sale of stock, wife was entitled to fifty percent of the net proceeds after taxes. (Hackett v. Hackett, 147 A.D.2d 611, 538 N.Y.S.2d 20).

(iv) Failure to Sign Joint Tax Return: Any adverse financial consequences of a party's refusal to sign a joint and/or amended tax return proffered by the other spouse can be taken into account in distributing the marital property. (Teich v. Teich, 240 A.D.2d 258, 658 N.Y.S.2d 599).

(k) The wasteful dissipation of assets by either spouse.

(i) Where a wife dissipated marital assets and attempted to conceal same, at least a portion of the amounts she dissipated should be charged against her share of the marital assets. Lenczycki v. Lenczycki, 152 A.D.2d 621, 543 N.Y.S.2d 724).

(ii) Where a spouse transferred assets to trusts and other corporations which were, in essence, his alter ego, a distributive award was necessitated to achieve an equitable result in the distribution of property. (Goldberg v. Goldberg, 172 A.D.2d 316, 568 N.Y.S.2d 394).

(iii) The shared liability caused by a spouse's failure to properly report income to the taxing authorities. (Moody v. Moody, 172 A.D.2d 730, 569 N.Y.S.2d 116).

(iv) Wife awarded seventy percent of the marital property where husband had tangled financial records, dissipated marital assets through gambling, was evasive and attempted to secrete moneys. (Conceiaco v. Conceiaco, 203 A.D.2d 877,611 N.Y.S.2d 318).

(v) Wife awarded sixty percent of the marital assets where husband refused to obtain employment for a two year period prior to trial and withdrew large sums of cash for his expenses. (Southwick v. Southwick, 202 A.D.2d 996, 612 N.Y.S. 2d 704).

(vi) Wife awarded sixty-five percent of the marital property where husband secreted assets into foreign bank accounts and squandered sizable sums on luxury items and in admitted adulterous affairs. (Maharam v. Maharam, 245 A.D.2d 94, 666 N.Y.S.2d 129).

(vii) Wife awarded seventy-five percent of the value of the marital residence where husband wastefully dissipated marital assets. (Ferdinando v. Ferdinando, 236 A.D.2d 585, 654 N.Y.S.2d 652).

(1) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.

2) "Egregious Fault"

1. Havell v. Islam - 751 N.Y.S.2d 449 (l,st Dept., 2002).

Wife was awarded 95% of the marital estate which had a value of approximately 20 million dollars, where the Husband broke into the Wife's room, pinned her to the bed with his knee and beat her viciously with the barbell on her face, neck and hands. Her screams brought the parties' three daughters into the room and the oldest called 911, which resulted in the Husband renewing his attack with a pipe. The Wife's injuries were severe and beside the facial and dental surgeries, she suffered pain, dizziness, headaches, nightmares, sleeplessness and post-traumatic stress syndrome.

The Husband's contention that egregious fault requires interference with the spouse's ability to be or to become self-supporting was wrong. Impairment of economic independence is not a requirement of a finding of egregious fault. There is a requirement that the conduct grievously injures some highly valued social principle.

2. Brancoueanu v. Brancoveanu, 145 A.D.2d 395, 535 N.Y.S.2d 86 (2d Dep't 1988).

Wife was awarded 60% of the net proceeds of the marital residence (and the Husband 40%) because the Husband's attempt to hire a person to murder the Wife constituted "particularly egregious and shocking" marital misconduct.

The court also held that a "great injustice would result if the Husband, who unsuccessfully contrived to have his Wife murdered" were to be awarded a portion of the value of her dental practice.

3. Wenzel v. Wenzel, 472 N.Y.S.2d 830 (S. Ct., Suffolk Co. 1984).

Wife was awarded 100% of the marital residence and the Husband's police pension, taking "into consideration" the Husband's vicious attack and "partly to compensate the wife for child support and maintenance, which was uncollectible due to the Husband's incarceration."

Husband stabbed the Wife numerous times and fled the marital residence "leaving her for dead." The Wife required extensive hospitalization, surgery and therapy. The Husband was arrested 5 months later, convicted of attempted murder and at the time of the decision was serving an 8-1/2 to 25-hear prison term.

Marital Fault

(1) Generally, marital fault is not a relevant consideration unless the conduct is so egregious that it shocks the conscience of the Court. Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110).

(a) Wife's involvement in an adulterous relationship did not rise to the level of such egregious or uncivilized conduct as to warrant depriving her of an equal share of Lestrange v. Lestrange, he marital assets. 148 A.D.2d 587,539 N.Y.S.2d 53).

(b) Husband's fraudulent promise to have children, resulting in wife having passed the age of child bearing, did not constitute egregious marital fault.

(McCann v. McCann, 156 Misc.2d 540, 593 N.Y.S.2d 917).

(c) An unsuccessful contrivance by one spouse to make arrangements to have the other murdered was a factor properly considered in determining equitable distribution. (Brancveanu v. Brancoveanu, 145 A.D.2d 395, 535 N.Y.S.2d 86).

No GET

(i) Religious Considerations -

(a) By withholding a Get to extract economic withholding concessions, the husband forfeited his right to distributive award.

(Schwartz v. Schwartz, 235 A.D.2d 468, 652 N.Y.S.2d 616).

(b) The trial court properly awarded the wife all property listed on the parties' statements of net worth if the husband did not grant her a Get within a specified time period.

(Pinto v. Pinto, 260 A.D.2d 622, 688 N.Y.S.2d 701).

III. 1. Definitions

"Marital Property" is defined in Domestic Relations Law ("DRL") §236[B][1](c) as follows:

"c. The term "marital property" shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined." DRL §236[B](1)(c).

"Separate Property" is defined in DRL §236[B](1)(d) as follows:

"d. The term separate property shall mean:

(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;

(2) compensation for personal injuries;

(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;

(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part." DRL 6236FB1(1)(d).

2. Burden of Proof

Judson v. Judson, 255 A.D.2d 656, 679 N.Y.S.2d 465 (3rd Dep't 1998).

"Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property."

Pullman v. Pullman, 176 A.D.2d 113, 573 N.Y.S.2d (1st Dep't 1991) - "there is a presumption that assets commingled with other property acquired during the course of the marriage are marital property."

3. Commingling and Transmutation

Imhof v. Imhof, 259 A.D.2d 666, 686 N.Y.S.2d 825 (2nd Dep't 1999) - "Separate property can be transmuted into marital property when the actions of the titled spouse demonstrate his intent to transform the character of the property from separate to marital [ . . . .] Here, there is every indication that the husband intended to commingle his funds by depositing the proceeds of the sale of his separate property into joint the accounts and by sharing the proceeds for family and business purposes."

Geisel v. Geisel, 241 AD.2d 442, 659 N.Y.S.2d 511 (2nd Dept. 1997) - "By placing the assets in both parties' names as joint tenants with the right of survivorship, the husband evinced intent to transform the character of the an to marital."

While the act of depositing separate funds into a joint account creates a presumption of an intent to convert those funds into a marital asset, this presumption may be rebutted. The party claiming the funds to be separate bears the burden of rebutting the presumption.

Rosenkranse v. Rosenkranse, 290 A.D.2d 685, 736 N.Y.S.2d 453 (3rd Dept. 2002) -'While an inheritance acquired by one spouse during a marriage and retained separately from marital funds would be considered separate property, the transfer of these assets into a joint account raises a presumption that the funds are marital property to be disbursed among the parties according to the principles of equitable distribution. This presumption cast[s] the burden on defendant to establish, by clear and convincing proof, that the joint account was created only as a matter of convenience * * * [citations omitted]). Defendant conceded at trial that he admitted during a pretrial deposition that he placed his wife's name; on the accounts with the express purpose of making those funds available to her, for her convenience, not his. Thus, Supreme Court properly held that defendant failed to rebut the presumption and we find no reason to disturb the court's determinations regarding the distribution of assets." 

Gundlach v. Gundlach, 223 A.D.2d 942,636 N.Y.S.2d 914 (3rd Dept. 1996) - "Although compensation for personal injuries is, as defendant alleges, usually considered separate property, a presumption that each party was entitled to an equal share of the deposit arose when defendant deposited the settlement money into a joint account (see, Banking Law §675[b]; Krinsky v. Krinsky, 208 A.D.2d 599, 600, 618 N.Y.S.2d 36; Giuffre v, Giuffre, 204 A.D.2d 684, 685, 612 N.Y.S.2d 439). This presumption cast the burden on defendant to establish, by clear and convincing proof, that the joint account was created only as a matter of convenience (see, Krinsky v, Krinsky, supra; Giuffre v. Giuffre, supra). Defendant failed to meet this burden. The evidence of various transfers from the joint account into and out of other accounts confirms plaintiffs testimony that all of the parties' money was handled jointly, regardless of the source."

Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 (2nd Dept. 2000) - "The Supreme Court properly found that the plaintiff commingled separate funds with marital funds, and that he failed to overcome the presumption that those assets available for distribution constituted marital property."

In order to rebut the presumption, the party seeking to have the asset classified as separate may provide evidence, by clear and convincing evidence, that the commingling of funds was solely for his or her own convenience.

McGarrity v. McGarrity, 211 A.D.2d 669, 622 N.Y.S.2d 521 (2nd Dept. 1995) - "The husband testified at trial that he inherited in excess of $250,000 from his mother and his brother. The major portion of those inheritances was received subsequent to the parties' physical separation. The husband deposited certain of these funds into the parties' joint accounts. As a result, the wife argues, these funds were transmuted into marital property, of which she is entitled to her equitable share. The husband sufficiently traced the funds from his inheritances to deposits into the parties' joint bank accounts. Moreover, he established that he simply deposited the money into whatever bank account was most convenient, whether near his office in Manhattan, or near the marital residence. Significantly, the bulk of the inheritance money was not received by the husband until after the parties were living separately, thus demonstrating the absence of any donative intent by the husband despite the wife's continued access to the accounts."

Giuffre v. Giuffre, 204 A.D.2d 684, 612 N.Y.S.2d 439 (2nd Dept. 1994) - "Pursuant to Banking Law §675(b), when one spouse places separate property in a joint account, a presumption arises that the parties are entitled to equal shares of the account (see, Di Nardo v. Di Nardo, 144 A.D.2d 906, 534 N.Y.S.2d 25). However, this presumption may be overcome when a spouse creates a joint account as a matter of convenience, without the intention of creating a beneficial interest, and when the funds for the account came solely from that spouse's separate property."

Chambers v. Chambers, 259 A.D.2d 807, 686 N.Y.S.2d 199 (3rd Dept. 1999) - "Defendant concedes that the amounts sought by him were placed in a joint account and then later placed in certificates of deposit or other accounts in his own name. In such instance, a party will not be credited for separate property if he fails to establish by clear and convincing evidence that the account was created only as a matter of convenience."

Krinsky v. Krinsky, 208 A.D.2d 599, 618 N.Y.S.2d 36 (2nd Dept. 1994) - "As the wife correctly asserts, the husband's one-half interest in a joint account which he held with his father should be deemed a marital asset. It is well settled that both depositors named on a joint account presumptively have an undivided one-half property interest in the moneys deposited [.... ] That presumption may be refuted by direct proof or substantial circumstantial proof, which is clear and convincing and sufficient to support an inference that the joint account had been opened in that form only as a matter of convenience."

Brugae v. Brugae, 245 A.D.2d 1113, 667 N.Y.S.2d 180 (4th Dept. 1997) - "The court did not err. .. in finding that money deposited by defendant in the parties' joint bank account constitutes her separate property. Defendant established that the joint account was used only as a conduit for the transfer of her capital interest from one business owned by her family to another, thus rebutting the presumption that, by depositing the funds into a joint account, separate property was transmuted into marital property."

The mere use by the party of his or her separate account or funds to pay joint or marital expenses does not itself convert the separate account into a marital asset.

Spencer v. Spencer, 230 A.D.2d 645, 646 N.Y.S.2d 674 (1st Dept. 1996) - "The fact that the plaintiff may have made withdrawals from his separate account to pay marital expenses does not alter this conclusion, as there was insufficient evidence of commingling to conclude that this account was transmuted into marital property."

Presumption of Marital Property Rebutted

Not extended to subsequently-received inherited funds deposited into individual bank accounts.

Feldman v. Feldman, 194 A.D.2d 207, 605 N.Y.S.2d 777 (2nd Dept. 1993) - ". . . the fact that a portion of the husband's inherited funds were deposited into a joint account does not support the further inference that the husband intended to treat all subsequently-received funds, which were placed in his individual bank accounts, as marital property."

This rule is sometimes similarly applied to real property. In the matter of Schmidlapp v. Schmidlapp, 220 A.D.2d 571, 632 N.Y.S.2d 593 (2nd Dept. 1995) the Court determined that real property was fully transmuted to marital property when the wife transferred title to the property to herself and the husband as tenants in the entirety., notwithstanding the fact that the unimproved lot was the wife's separate property prior to the marriage.

For a contrary holding, see:

Coffee v. Coffey, 119 A.D.2d 620, 501 N.Y.S.2d 74 (2nd Dept. 1986) - Where the husband conveyed marital residence held as separate property to himself and wife as tenants by the entirety, the husband was entitled to value of such residence at time of conveyance as credit for contribution of separate property to creation of residence as marital asset, and wife was entitled to one half of increase in current value of house due to addition to house made after conveyance and to one half of appreciation in value of original structure attributable to her efforts as homemaker and parent.

Carr v. Carr, 291 A.D.2d 672, 738 N.Y.S.2d 415 (3rd Dept. 2002) - Husband allowed $195,000 credit for downpayment and payments on principal of mortgage made with non-marital funds.

Gonzalez v. Gonzalez, 291 A.D.2d 373, 737 N.Y.S.2d 111 (2nd Dept. 2002) - "The record indicates that the appellant contributed $54,000 in separate property to the purchase of the residence. The Supreme Court thus erred in failing to give her a credit for that amount prior to the equitable distribution of the asset."

Robertson v. Robertson, 186 A.D.2d 124, 588 N.Y.S.2d 43 (2nd Dept. 1992) - "The marital residence, an apartment, was purchased after the parties' marriage and was therefore subject to equitable distribution. It is undisputed that the wife contributed $45,633.75 in separate property toward the purchase of the apartment. The trial court thus erred in failing to give her a credit for that amount prior to the equitable distribution of the asset."

Koehler v. Koehler, 285 A.D.2d 582, 727 N.Y.S.2d 913 (2nd Dept. 2001) - Where the parties took title to the marital residence as joint tenants before they were married, and where the wife paid for the house solely with her own funds, it was improper for the Court to adjudge the property to be marital property and directing that it be sold. Nevertheless, any appreciation In the value of the property may be deemed marital property.

In Koehler, the Court determined that even where real property was titled jointly in the parties' names, the husband's lack of any contribution to the property precluded a distribution of the asset, and effectively returned to the wife her 100% investment of seed money into this marital asset.

In some instances, seed money is not returned to the contributor where it may result in a double-dip.

2. Is "seed" money a factor in distribution of transmuted or commingled property?

In the interesting holding of Alessi v. Alessi, the Court declined to award any portion of an increase in value in real property, finding that there., was no transmutation of the asset, but did indicate that the non-titled spouse was entitled to a return of her share of marital funds contributed towards the mortgage on the property.

Alessi v. Alessi, 289 A.D.2d 782, 734 N.Y.S.2d 665 (3rd Dept. 2001) (citations omitted) - ". . . plaintiff offered no competent evidence and Supreme Court made no findings concerning any enhancement of the value of this property as a result of plaintiffs efforts during the marriage. Under the circumstances, plaintiffs interest in that property is limited to her equitable share of the marital funds applied toward repayment of the mortgage on the residence, which we determine to be 12 payments of $290 or $3,480."

Mica v. Mica, 275 A.D.2d 765, 713 N.Y.S.2d 545 (2nd Dept. 2000) - "The Supreme Court also properly credited the plaintiff in the amount of $4,050 for his separate contribution to renovations on the marital residence prior to the marriage, since the defendant also received a credit for her separate contribution towards the purchase of the marital residence."

Barnes v. Barnes, 106 A.D.2d 535, 483 N.Y.S.2d 358 (2nd Dept. 1984) - "the facts of this case strongly oppose granting the husband any share in the marital premises or household furnishings therein. At best, defendant's contributions and efforts, both economic and noneconomic, to the acquisition, maintenance and appreciation in value of the marital residence were minimal."

Butler v. Butler, 171 A.D.2d 89, 574 N.Y.S.2d 387 (2nd Dept. 1991) - Where wife's separate property constituted approximately 86% of down payment for marital residence and husband's separate property constituted approximately 14% of down payment, it was appropriate, upon sale of marital residence after eighteenth birthday of parties' child, for each party to receive dollar-for- dollar credit equivalent to amount of their original contribution of separate property, with remainder of proceeds being divided, after satisfaction off mortgage, 75% to wife and 25% to husband.

Friederich v. Savaae, 138 A.D.2d 955, 526 N.Y.S.2d 411 (4th Dept. 1988) - "the trial court correctly determined that the original value of the marital residence ($55,000), purchased by the parties as joint tenants prior to their marriage, is separate property. Thus the sum of $55,000 is to be divided equally between the parties and the remainder is to be distributed in accordance with the formula established in the judgment."

Varga v. Varga, 288 A.D.2d 210, 732 N.Y.S.2d 576 (2nd Dept. 2001) "Subtracting the outstanding mortgage balance of $69,000 from the appraised value of the home of $124,800 leaves $55,800 in total equity. The defendant's $50,000 separate contribution towards the purchase price of the marital residence is to be subtracted from this amount, resulting in the sum of $5,800. The plaintiff is then entitled to a one-half interest in this sum, amounting to an award of $2,900."

Burgio v. Burgio, 278 A.D.2d 767, 717 N.Y.S.2d 769 (3rd Dept. 2000) - ". . . the residence was constructed prior to the marriage, and evidence that defendant assisted in the cleanup of the property and that payments were made on plaintiffs mortgage during the marriage will not support a transformation of the marital residence into marital property. Defendant's interest in such property is therefore limited to her equitable share of (1) the moneys received by the parties as wedding gifts and used to repay plaintiffs separate debt of $2,000 to his siblings, and (2) the marital funds used to pay the mortgage on the residence."

3. Are the courts treating transmuted or commingled liquid assets and real property differently?

When the transmuted asset is real property, the Court tend to unanimously factor into the calculation any separate contribution towards the attainment of that asset. That portion of a downpayment, for example, which is comprised of separate assets, is typically backed out of the value of the property and returned to the party who contributed the separate asset, even where the property is deemed marital.

Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 (2nd Dept. 2000) - "However, in the exercise of our factual review power, we modify the defendant's equitable share in the marital residence from $72,250 to $50,667 to properly reflect the plaintiffs contributions to that asset, and the parties' circumstances. We note that the house was purchased by the plaintiff and his father in 1966, and was placed in the parties' names in 1979. The plaintiff, by placing the marital residence in both names, changed the character of the property to marital property (see, Schmidlapp v. Schmidlapp, 220 A.ID.2d 571, 632 N.Y.S.2d 593). However, each item of marital property need not be distributed on an equal basis (see, Coffey v. Coffey, 119 A.D.2d 620, 501 N.Y.S.2d 74). In view of the plaintiffs contributions of separate property, and the circumstances of the parties, an award to the defendant of one-third of its value is appropriate (see, butler v. Butler, 171 A.D.2d 89, 574 N.Y.S.2d 387; Denholz v. Denholz, 147 A.D.2d 522, 537 N.Y.S.2d 607)."

4. Active v. Passive Appreciation

Separate property may increase in value during the marriage. This increase in value may itself be considered a marital asset subject to equitable distribution between the parties. The long-standing law in connection with this concept was first elaborated by the Court of Appeals in the matter of Price v. Price. The Court held that an increase in value of a separate asset may become marital property if that increase was due, in some part, to the direct or indirect efforts of the non-titled spouse.

Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219 (1986) - "an increase in the value of separate property of one spouse, occurring during the marriage and prior to the commencement of matrimonial proceedings, which is due in part to the indirect contributions or efforts of the other spouse as homemaker and parent, should be considered marital property."

Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537 (1995) - "In Price v. Price, this Court set forth the "active/passive" test, which established the guidelines for determining whether the appreciation in a titled spouse's separate property has been transmuted into marital property based on the indirect contributions of the nontitled spouse (69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684, supra; Domestic Relations Law §236[B][1][d][3]; [5][d][6] )."

Zielinski v. Zielinski, 289 A.D.2d 1017, 735 N.Y.S.2d 302 (4th Dept. 2001) - "The court properly concluded that one half of the appreciation of plaintiffs interests in the businesses during the marriage was attributable to plaintiffs efforts, not to unrelated factors such as inflation or other market forces, and thus constituted marital property."

The Court of Appeals in Price and Hartog established what has since become known as an "active/passive test in determining whether the increase in value should be considered a marital asset. In short, this test requires the non-titled spouse seeking distribution of the increase in value to demonstrate that the increase occurred as a result of some active contribution, either directly or indirectly, to that increase in value, and that it did not occur as a result of mere market forces. Contribution, even active contribution, must be demonstrated to have had a direct causal link to the increase in value.

In the matter of Elmaleh v. Elmaleh, 184 A.D.2d 544, 584 hI.Y.S.2d 857 (2nd Dept. 1992), where husband claimed that the value of wife's interests in real property increased during the marriage, and where he had managed the properties on a full-time basis for nearly 20 years, he was denied distribution of any portion of the increase in value as he failed to demonstrate the manner in which his contributions resulted in the increase in value and the amount of the increase which was attributable to his efforts. The evidence at trial established that the increase in value was caused by an upturn in the real estate market.

In contrast to the holding of Elmaleh is the matter of WE3gman v. Wegman, 123 A.D.2d 220, 509 N.Y.S.2d 342 (2nd Dept. 1986). In this case, the wife was awarded a share of the increase in value of her husband's separate 25% ownership interest in the business. The evidence presented was that the value of that interest appreciated considerably during the parties' marriage, that wife "contributed to the appreciation of that interest and she is therefore entitled to an award of a percentage of the appreciation of that separate asset, having shown that her direct and indirect contributions to the marital relationship were causally related to the enhancement in value of the business." The Court had found that the wife "was required to totally support her husband and herself until January 1949 and always contributed all of her earnings toward the expenses of the household. She claimed she had suggested new products to be sold and sought out new employees, including her cousin's husband, who had worked in a medical laboratory. She also stated that she entertained large numbers of business guests on an average of twice per month, doing all of the planning, preparing, and cooking herself. She testified that she obtained investors from among her acquaintances and became active in civic affairs in order to meet people who might be helpful to her husband in his business." The Court found this to be significant contribution towards the growth of the husband's business interests and the increase in value thereof.

In the matter of Spencer v. Spencer, the Court held that the wife's indirect contribution as housewife and homemaker were sufficient indirect contribution to the appreciation of brokerage account, which the husband had inherited.

Spencer v. Spencer, 230 A.D.2d 645, 646 N.Y.S.2d 674 (1st Dept. 1996) - "Pursuant to Domestic Relations Law §236(B)(1)(d)(3), however, the appreciation of this account, due to the plaintiffs management during the marriage, must be credited to the defendant, who is entitled to a fifty percent share of such appreciated value during the marriage as part of the marital estate. [. . . . ] Here, the plaintiff used his experience in accounting and taxation to manage the investments in the inheritance accounts with his son. Since the defendant indirectly contributed to the appreciation of this asset by handling the household matters, thereby permitting her husband the freedom to devote energy to his financial endeavors (Price, supra, at 16, 511 N.Y.S.2d 219, 503 N.E.2d 684), her contribution should be given consideration in the distribution of the appreciated value of this asset."

A spouse's active management of a separate asset does not always result in any increase in value being deemed marital property subject to distribution.

Lawson v. Lawson,, 288 A.D.2d 795, 732 N.Y.S.2d 753 (3rd Dept. 2001) - Husband's interest in two real estate holding companies, owned by himself and relatives, was passive, allowing for exclusion of increase in value of husband's interest during marriage as marital property for equitable distribution purposes, despite claim that husband did some bookkeeping, prepared estate succession computer program involving one company, developed computer data base, and discussed business matters regarding companies with his mother from time to time.

The Court sometimes suggests that the increase in value is presumed marital from the date the separate asset is transmuted to a marital asset.

Rugen v. Rugen, 289 A.D.2d 218, 734 N.Y.S.2d 465 (2nd Dept. 2001) - "Contrary to the plaintiffs contentions, the Supreme Court properly applied the relevant factors of Domestic Relations Law §236(B)(5)(d) when it awarded her 50% of the appreciation in the marital residence from May 2, 1990, the date that the residence was transformed from the defendant's separate property into marital property, through January 21, 2000, the date of the trial."

VI. Licenses and Degrees

1. A professional license acquired during die marriage is a marital asset subject to equitable distribution. O'Brien v. O'Brien, 66 N.Y.2d 576.489 N.E.2d 712, 498 N.Y.S.2d 743).

(a) Medical license held marital property. (Jafri v. Jafri, __A.D.2d__, 699 N.Y.S.2d 920).

2. Other types of licenses:

(a) License as practical nurse held marital property. (Morales v. Morales, 230 A.D.2d 895,646 N.Y.S.2d 884).

(b) License as school guidance counselor also held to be marital property. (Holihan v. Holihan, 159 A.D.2d 685, 553 N.Y.S.2d 434).

(c) However, uncompleted studies that might lead to a license in the future are not to be treated as marital property. (Kyle v. Kyle, 156 A.D.2d 508, 548 N.Y.S.2d 781).

3. An academic degree is marital property to the extent that it has been earned through a course of study undertaken during the marriage. (MVIcGowan v. McGowan, 142 A.D.2d 355, 535 N.Y.S.2d 990).

(a) Bachelor's degree in Technology Computer Science Program earned during the marriage is a marital asset, which a share of the enhanced earning capacity resulting therefrom should be distributed to the spouse without such degree. (Smith v. Smith, 227 A.D.2d 891, 643 N.Y.S.2d 274).

(b) Master's in Business Administration deemed marital property, of which the enhanced earning capacity attributable to same should be valued for purposes of equitable distribution. (Miyake v. Miyake, NYLJ 10/5/98, p. 29).

4. Enhanced earning capacity enjoyed by husband as a result of his successful completion of a course of study culminating in registration as a physician's assistant and certification as a physician's assistant is marital property. (Morimando v. Morimando, 145 A.D.2d 609, 536 N.Y.S.2d 701).

5. That portion of a Fellowship in the Society of Actuaries earned during the marriage and any corresponding enhanced earning capacity is marital property subject to equitable distribution. (McAlpine v. McAlpine, 176 A.D.2d 285, 574 N.Y.S.2d 385).

6. Board certification in internal medicine held to be marital property. (Savasta v. Savasta, 146 Misc.2d 101, 549 N.Y.S.2d 544).

7. Enhancement of a medical license by emergency room employment, without a formal certification for this specialty, held marital property. (Madori v. Madori, 151 Misc.2d 737, 573 N.Y.S.2d 553, aff'd on other grounds, 201 A.D.2d 859, 608 N.Y.S.2d 331).

8. Police officer's two degrees and successful completion of civil service examinations for promotions up to Lieutenant enhanced his earning capacity and should be considered marital property subject to equitable distribution. (Alloco v. Alloco, 152 Misc.2d 529, 578 N.Y.S.2d 995).

9. However, a police officer's promotion to Sergeant without obtaining an educational degree in the process did not constitute an ascertainable asset to which an enhanced earning capacity could be attached. (Bystricky v. Bystricky, 177 Misc.2d 914, 677 N.Y.S.2d 443).

10. Likewise, absent a degree or license, attendance at the Harvard Advance School for Banking did not constitute marital property subject to equitable distribution. (West v. West, 213 A.D.2d 1025, 625 N.Y.S.2d 116).

11. Yet, it has been held that enhanced earning capacity as an investment banker is subject to equitable distribution regardless of whether such career requires a license. (Hougie v. Hougie, 261 A.D.2d 161, 689 N.Y.S.2d 490).

12. Certification as a Chartered :Financial Analyst (CFA) acquired during the marriage is a marital asset with value. (Murtha v. Murtha, 264 A.D.2d 552, 694 N.Y.S.2d 382).

13. The career and celebrity status of a well known entertainer is marital property subject to equitable distribution, where the non-celebrity spouse contributed. (Elkus v. Elkus, 169 A.D.2d 134, 572 N.Y.S.2d 901).

14. The skills of an artisan, actor, professional athlete or any person whose expertise has enabled them to become an exceptional wage earner should be valued as marital property subject to equitable distribution. (Golub v. Golub, 139 Misc.2d 440, 527 N.Y.S.2d 946).

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