Before New York laws divided marital property via manner of equitable distribution, New York laws divided marital property under the concept of “community property.”
In a community property state, the judge merely separates the marital property directly in half. The judges do not have to consider fairness, employment, age, health, or any other factors of the party. Therefore, it makes for a very quick division of the marital property.
In deciding alimony and child support in community property states, a judge can still consider factors regarding each spouse’s employment, age, health, length and duration of the marriage. Therefore, if the state has community property with equal division of the property, it does not mean that the alimony will be equal or non-existent.
Marital property divided by the community property rules only exists in nine states today. They are most common in Western States. These include larger states of California and Texas, as well as, Arizona, Idaho, Louisiana, New Mexico, Nevada, Washington and Wisconsin.
Equitable distribution is the set of rules that the rest of the United States uses, including New York. Equitable distribution requires the court to divide the marital property equitably, but this does not necessarily mean equally. Rather, the Court will take into consideration many different factors and weigh these factors as to how much each party should receive. Therefore, a lot of power is vested in the judge in order to divide the marital assets.
Some of the factors that the Court will consider is the ability of a spouse to support him or herself, if one spouse sacrificed for the other spouse throughout the marriage, the length and duration of the marriage, the age and health of the parties. Courts will even look at the professional licenses and vocational training earned by a spouse. Thus, if a marriage is short, a judge will be reluctant to give a spouse’s income to the other spouse. However, if one spouse worked to allow the other spouse to go to law school and the spouse is now a lawyer, a judge may reward the working spouse with assets to rehabilitate her sacrifice.
Equitable distribution will only divide marital property, not separate property. Separate property is any property acquired before the marriage or during the marriage by gift, descent, or devise, as well as property subject to a prenuptial agreement.