Elliot Polland has over 30 years experience as divorce lawyer from NY. Divorce by definition is the termination of the marital relationship. In New York there are six (6) separately enumerated grounds for divorce, i.e. adultery, cruel and inhuman treatment, abandonment for more than one year, incarceration for more than 3 years, living separate and apart for more than one year pursuant to a judgment of separation, and living separate and apart for more than one year under a separation agreement. Unlike other states, New York does not permit the granting of a divorce based upon incompatibility. If a judgment of divorce is granted, the Court is required to equitably distribute the marital property of the parties. Marital property is defined, in simple terms, as all assets that have been acquired during the marriage and up until a matrimonial action has been commenced. The concept underlying equitable distribution is that the marriage is an economic partnership which ends when either party commences a matrimonial action. This enables the court to have an objective standard as to when the marriage is dead, i.e. when a divorce action is commenced. Marital property does not include inheritances, gifts from third persons nor recoveries for personal injuries, even if they occur during the marital period. The presumption is that assets acquired during the marriage are marital and the burden of proof is on the party claiming an asset is separate property. The granting of a divorce is a prerequisite for the granting of equitable distribution. If the divorce is denied for failure of proof, there will be no equitable distribution. This has resulted in the spouse with the assets to often resist the judgment of divorce so as to avoid sharing marital assets. New York is not a community property state. Thus equitable distribution does not mean equal distribution. In making an equitable distribution, the Courts are required to consider statutorily enumerated factors, all of which have to be proven at the matrimonial trial.

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