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New York’s Equitable Distribution Law
Effective July 19, 1980, New York joined the ranks of many other states and became an equitable distribution state. The new law, known as the "Equitable Distribution Law", is actually an amendment to S236 of the Domestic Relations Law and, among other things, changes the concept of property and distribution of property upon dissolution of a marriage. Much of the new law was patterned after the Equitable Distribution Law enacted many years earlier in New Jersey. Prior to the enactment of the new law, New York was a "title" state and property in the name of a spouse ( the title spouse) remained that spouse's property after the marriage was dissolved. The nontitled spouse was rarely awarded any part of the property in the other party's name upon the dissolution of marriage. This was true even though the property was acquired during the marriage. There were exceptions in cases of fraud but it was often very difficult to prove and often fraud was not actually involved in the acquisition of property. (see Fischer v. Wirth, 38 AD2d 611 -3rdDept. 1971). One can readily see that prior to the equitable distribution law, harsh results could ensue upon the dissolution of a marriage which a court was powerless to correct, absent fraud.
The new law, hereinafter referred to as EDL, made many other significant changes to existing law. One of those changes was to gender-neutralize those statutes within the Domestic Relations Law (DRL) and the Family Court Act (FCA) and those statutes outside of the Domestic Relation Law and the Family Court Act that created certain imposed obligations on one party to a marriage over the other party or imposed obligations on only one of the parties. The words "wife" and "husband" were replaced by "parent".
Prior to the effective date of EDL, the United States Supreme Court in Orr v. Orr, 99 Sup. Ct. 1102 (1979), held that an Alabama statute that provided for alimony to wives only was unconstitutional since it was a denial of equal protection of the law as guaranteed to the States by the Fourteenth Amendment to the U.S. Constitution. That decision is reflected in the EDL and in all other statutes in New York. Alimony ( now called maintenance) in now a mutual obligation.
In order to qualify for a New York uncontested, "no-fault" divorce, both parties must agree to the divorce, division of all marital assets, debts, property, custody of the minor children, support for the minor children and spousal maintenance. In an uncontested divorce, the defendant can be served but if he or she does not answer the complaint in divorce then the plaintiff can seek a default judgment in divorce. The defendant can also waive his or her right to answer the complaint.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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