Equitable Distribution: Where Have we Gone Wrong? Pg 2

Domestic Relations Law §236 B(d)(4) mandates the court to determine the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution. There are not many instances where pension rights are lost because of divorce but because Qualified Domestic Relations Orders can be implemented to share the pension benefit, no prejudice would arise. However, there is no similar remedy to compensate a spouse for the loss of inheritance rights.

Domestic Relations Law §236 B(d)(6) is interesting. Its provision permits the court to consider the contribution of a spouse, parent, or homemaker before dividing marital assets. If the courts continue to quantify the value of enhanced earnings, and this doctrine remains the law in New York, it would seem even more important to obtain a quantification of such services. There are experts who can be found who will be able to quantify these services. We all know the value of a nanny in a busy household; the cost of domestic servants, and even conjugal rights can also be quantified.

Domestic Relations Law §236 B(d)(8) is another provision that has rarely been comprehensively commented upon by the courts in their equitable distribution decisions. How does one quantify the probable future financial circumstances of each party? It can be done simply by calling an expert in economics and employment opportunity who can offer testimony as to the reasonable expectation and value of a woman's place in the marketplace (if that be the case) as opposed to a male, and the likelihood of obtaining employment on an executive level, based upon the education and/or work experience that she had foregone during the marriage. In a marriage of long duration, where a woman is a stay-at-home mom, and has given up years of experience in the job market, this would translate into lower earnings over the course of one's working life. More attention should be given by both bench and bar to this enumerated factor.

In its wild card factor Domestic Relations Law §236 B(d)(13), which requires the court to consider any other factors which are found to be just and proper, the court has carte blanche to delve into any peculiar circumstances germane to the individual case, that could affect its final decision. But this factor is discretionary not mandatory, and a salient factor can be overlooked or declined from a court's consideration.

DRL §236 B(6)(5) which provides for consideration of "reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage", seems to be misplaced. It appears that the legislature overlooked the impact this enumerated factor, contained only in the maintenance section, would have on an award of equitable distribution. Even although the court can consider any factor it deems relevant, it is not mandatory to do so. Subdivision (5) is one of the few enumerated factors which is not contained in both the maintenance as well as the equitable distribution sections. In fact, subdivision (1), (2), (3), (6), (7), (8), (9), (10) and (11) are duplicative of the provisions contained in subdivision (d).

It is most troublesome that the courts in the past twenty-five years have yet to specifically address some of the issues we raise, and have failed to supply comprehensive decisions which would furnish advice and insights to the bar.

In another arena, even though the courts seem for the most part, to be unconcerned with marital fault, (seeking in most instances to have the parties take an inquest on constructive abandonment) fault continues to remain a part of the Domestic Relations Law. It is an archaic, and unreasonable requirement under the law. Although it is rare to see a contested divorce case on grounds reach trial, or for that matter a court denying the plaintiff relief for lack of proof of cruel and inhuman treatment, nevertheless published decisions continue to appear. The failure to grant a divorce, apart from causing emotional trauma to the plaintiff, compels parties to live together and remain married, imports incalculable harm to the children, and will continue to do so if such results continue to proliferate. An exception for egregious fault exists that permits the court to consider such fact in making an award of equitable distribution. No similar provision, however, appears to apply to maintenance cases. Whether egregious fault can be considered as a wild card factor or not, it is long past due for the legislature to repeal the requirement of fault to obtain a divorce, and enter the twenty-first century.

What interpretation of the equitable distribution statute will be made in the next twenty-five years remains to be seen. Nonetheless one thing is clear, the doctrine of enhanced earnings has outlived its welcome, and must be reversed. If the courts fail to do so, the legislature must act. In default of such occurrences, the doctrine must be applied across-the-board to non-professionals and any artisan or workman who enjoys special skills acquired during the course of an apprenticeship or actual work experience on the job during marriage. Failing to do so should cause a constitutional attack that the statute as it applies to enhanced earnings, does not permit equal protection under the law to all litigants. We should not have to wait another twenty-five years for such relief to be granted. It should now be done.

1 66 N.Y.2d 576, decided on December 26, 1985, which resulted in quite a Christmas bonus for Mrs. O'Brien.

2 3 N.Y.3d 1, decided on June 10, 2004, nearly twenty-four years to the day of the passage of equitable distribution.

3 This mandatory provision by the court cannot be waived by counsel.
*Elliot Samuelson is the senior partner in the Garden City matrimonial law firm of Samuelson, House & Samuelson, LLP and is a past president of the American Academy of Matrimonial Lawyers, New York Chapter and is included in "The Best Lawyers of America" and the "Bar Registry of Preeminent Lawyers in America." He has appeared on both national and regional television and radio programs, including Larry King Live. Mr. Samuelson can be reached at (516) 294-6666 or [email protected]

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