USA – NEW YORK Law and Practice Contributed by: Gretchen Beall Schumann and Lindsay R Pfeffer, Rabin Schumann and Partners LLP
same meaning as in subdivision 5 of Section 350 of the Agriculture and Markets Law; and • any other factors which the court expressly finds to be just and proper. Financial Orders to Regulate or Reallocate Assets or Resources The court will typically determine whether a division of property occurs on an in-kind basis or whether it is appraised and a credit is given to the spouse who is not retaining the property post-divorce. The court considers the factors set forth in the response above. Identifying the Assets There is a financial discovery process whereby each spouse prepares a net worth statement identifying all assets and liabilities, as well as broad exchange of financial documentation in discovery, including income tax returns, bank account statements, brokerage and investment account statements, real property records, business records and so on. Parties may also engage in depositions, exchange interrogatories and serve discovery subpoenas for information and/or deposition testimony. A court may make orders for disclosure against third parties. Property Regimes New York is an equitable distribution state, meaning the division of assets upon divorce is not necessarily equal. Rather, a court will look to the 16 factors provided by statute to determine a fair and equitable division of assets. Trusts New York courts recognise trusts. The court may consider distributions from a trust in determining a party’s income. To the extent
that marital assets have been utilised to acquire property held by a trust, that property might, in certain circumstances, be deemed marital prop - erty or result in distribution credits. The treatment of a trust depends largely on the circumstances surrounding the creation of the trust as well as the terms of the trust. The case law is varied with regard to how trust assets are treated in the context of equitable dis - tribution. For example, to the extent that a trust was created by a non-party for the benefit of one party as an estate planning mechanism, or both parties consented to and purposefully created a trust for the benefit of each other and/or their children, the trust assets are more likely to be considered outside of the marital estate, while the trust terms remain intact. See Oppenheim v Oppenheim, 168 A.D.3d 1085 (2nd Dept. 2019). However, factors may be present which warrant piercing the trust or providing for an equitable distribution credit for marital assets that are con - tributed to a trust. This is especially so where marital assets have been placed into trust with - out one party’s consent, where marital assets are placed into a trust so as to defeat a spouse’s rights to access martial assets, or where the trust itself is invalid. See Riechers v Riechers, 267 A.D.2d 445 (2nd Dept. 1999); Surasi v Sur - asi, 2001 NY Slip Op 40408(U) (Supreme Court Spousal maintenance is authorised by statute. It is regularly awarded in divorce actions and the parties may agree upon payment of spousal maintenance in written settlement agreements. There has been a shift to a more formulaic approach in recent years, especially as to dura - tion. of Richmond County 2001). 2.4 Spousal Maintenance
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