Legal Question in Family Law in New York

Re: Stay-at-home mom wants to go home

A very broad question for this forum.

Q. What are you entitled to?

A. Certainly, you are entitled to equitable distribution for your marital assets. Under DRL 236B, "the term "marital property" shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held..." In other words, pensions, bank accounts, real property, etc. purchased or increased in value during the marriage is deemed marital property.

Marital property is divided by equitable distribution. Equitable distribution means fair, not necessarily equal. Under NY DRL 236B, the court uses the following to determine equitable distribution:(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;(2) the duration of the marriage and the age and health of both parties;(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;(5) any award of maintenance under subdivision six of this part;(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;(7) the liquid or non-liquid character of all marital property;(8) the probable future financial circumstances of each party;(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;(10) the tax consequences to each party;(11) the wasteful dissipation of assets by either spouse;(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;(13) any other factor which the court shall expressly find to be just and proper.

Q. What first steps should I take?

A. Obtain a copy of ALL financial records - and I mean everything!

Q. Can I take my kids back to our original home state?

A. Since the kids have been in NY over 6 months, NY has jurisdiction over the children. If you take the children back to the home state, and the husband files a petition for visitation and/or custody, you would have to return the children to NY and/or litigate the issue in NY.

Mike.