Should There Be a Presumption That 'Equitable' Is 'Equal'?
In his Divorce Law column, Alton L. Abramowitz writes: It is time for the Legislature to take a look at the Equitable Distribution Law and to ask itself whether it is time to enact a presumption of equal distribution of marital assets that puts the burden of proof on the party seeking an unequal division, usually the more economically powerful spouse, rather than on the spouse providing contributions that cannot be measured in dollars alone.
January 29, 2015 at 09:52 PM
9 minute read
On July 19, 1980, New York's Equitable Distribution Law (Domestic Relations Law [DRL] §236B) became effective. Prior to that date, when spouses divorced, title to property remained with the spouse holding title at the time when the marriage was dissolved. Thus, if the husband had sole title, he kept the asset (or the liability), as did the wife if she held title in her individual name, and, if title was in the joint names of both spouses, it was divided equally (or as some would say “right down the middle”).
The Equitable Distribution Law, in responding to the Women's Rights Movement that had been sweeping across the United States in the years leading up to its passage, looked upon marriage as a “partnership” akin to a “business partnership.” The underlying theory was that each of the spouses (i.e., the “partners”) made economic and other valuable contributions to the partnership by giving of their time in service to that partnership as a spouse, companion, homemaker, parent, worker, income producer, etc.
The “equitable distribution” concept found its roots in those western states of our nation, where the development of the law, for the most part, followed the traditions of European civil law, rather than English common law. Those western states treated property acquired during the marriage as “community property” and divided those community property assets equally between the spouses. This equal division was automatic.
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