The Wife Denied Equitable Distribution: The Property Was Acquired Prior to the Marriage

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In a case before Supreme Court Justice Pam Jackman Brown, sitting in Queens County, Supreme Court, a husband brought a lawsuit for divorce against his wife, claiming irreconcilable differences. The wife sought to have equitable distribution of assets in the divorce case. The husband claimed all the assets the wife sought were accumulated by him prior to the marriage. Justice Brown found there were no joint assets accumulated by the parties during the course of the marriage and therefore the wife was not entitled to equitable distribution for the property she claimed were marital assets.

Common Law Marriage Argument

The wife presented an argument that she had a long term relationship with her husband which took place prior to the marriage. She therefore claimed the assets that were accumulated by her husband during their relationship prior to the marriage should be considered marital assets subject to equitable distribution.

Justice Brown ruled against the wife. She found there was no documentary evidence showing wife contributed financially to the assets which she alleged were subject to equitable distribution and acquired by the husband prior to the marriage. Justice Brown found the wife did not sustain her burden of proof to show a constructive trust was created between the parties before the marriage. Justice Brown gave the wife a $10,000.00 lump sum equitable distribution award related to the marital residence.


Attorney Elliot SchlisselOnly assets accumulated during the marriage are subject to equitable distribution in the State of New York. All other assets are considered separate property of each of the parties and are not considered assets of the marriage.

VIDEO: Dividing Assets in A Divorce

Dividing Assets in the Divorce

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All assets the married parties have are not subject to equitable distribution in divorce cases in New York. All assets accumulated prior to the marriage and maintained separately such as 401k plans and pension plans are not subject to equitable distribution in divorce proceedings. Assets accumulated prior to marriage are called “separate property”. In cases where there are 401k assets or pension assets that accumulated prior to the divorce marriage it may be necessary to hire an actuarial firm to determine which portion of the assets are “separate property” and which are “marital property”.

Qualified Domestic Relations Order (QDROs)

Qualified domestic relations orders (QDROS) are submitted to the Supreme Court judge in divorce proceedings. These orders separate the marital assets from the non marital assets.  The non marital assets can be separate property of either of the spouses.  Specialized actuarial companies are usually retained by the attorneys to draft these complicated orders.

Social Security Benefits and Divorces

The issue of Social Security benefits are not specifically mentioned in divorce proceedings. However, survivor Social Security benefits can be a significant source of income for individuals in divorce cases. If the parties were married for a minimum of ten years each individual is entitled to a benefit 50% of the ex-spouses anticipated Social Security payments.

Spouse’s Social Security Benefits

New York father's rights lawyer Elliot Schlissel

Many people feel that they will be receiving the benefits from their own earnings and therefore they are not entitled to a portion of their spouses Social Security benefits.  However, should 50% of your ex-spouses Social Security benefits be greater than your anticipated Social Security Benefits, you’re entitled to the higher of the two.  An example of this is, suppose your Social Security benefits are $500.00 a month and your former spouse’s benefits are $2000.00 per month. Half of those benefits would be $1000.00 per month. You therefore would be entitled to an additional $500.00 a month from your spouse’s Social Security benefits. If you have a situation similar to this, you should not leave this money unclaimed. The government will survive even if you receive your full Social Security benefits!