After a few years of confusion, the Appellate Division, Second Department, in Rodriguez v. Rodriguez,1 has brought some sanity back to the relationship between asset distribution and spousal support. That decision reinstates a principle previously established by many courts, including the Court of Appeals, that where an income stream is converted into an asset and distributed, the income used was no longer also available for spousal support—it was classified as an impermissible “double dipping” or “double counting.”2 That precept, which had also applied to business distributions, was later twisted and mangled by the Court of Appeals’ Keane v. Keane3 and its progeny. It now by and large returns in a Feb. 9 decision in Rodriguez.
In Keane, it was found that the court’s consideration of the husband’s monthly rental income from his body shop repair business in the computation of an award of maintenance to the wife did not constitute impermissible double counting. This was held even though the capitalization of income method was used to appraise the full market value of rental property in calculating the wife’s distributive award of marital property, since the rental property could be readily distinguished from its income-producing capacity.
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