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Unequal Property Division - Breadwinner Vs. Homemaker
2004 National Legal Research Group, Inc.

NEW YORK: K. v. B., ___ A.D.3d ___, 786 N.Y.S.2d 76 (2004).

The trial court did not err in awarding 65% of the marital estate to a wife who worked full time as an attorney, contributing significantly more value to the marriage than did the husband, and who was also the primary homemaker. The court did not err in failing to value the contingent fees of the wife's law practice, as the husband had not introduced sufficient valuation evidence.


The parties were married for 26 years and had three children. A week before they were married, they entered into a premarital agreement which set forth a rather unusual marital arrangement. As each party had their own profession, the wife being an attorney and the husband being an architect, the agreement provided that each party would live in separate New York counties during the week and would come together for weekends. It was also specifically agreed that, in the event of a divorce, there would be an equal division of marital property. The parties separated in 1998. Because the premarital agreement had not been properly recorded, as was required under the law in existence at the time it was executed, the trial court held that the agreement was invalid and unenforceable. That court, in making a distribution of the marital property, awarded 65% to the wife. The husband appealed. The appellate division affirmed, finding that the unequal distribution was justified under the circumstances of the case.

First, as to the husband's claim of an unequal distribution of marital assets, the court on appeal recognized that the New York Domestic Relations Law contemplated an equitable, but not necessarily equal, division of marital assets, based on the respective parties' contributions to the marriage, as well as on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children, and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home. In the present case, the court pointed out that the wife was the principal wage earner for most of the marriage. During the second half of the marriage, she provided nearly all of the entire family's financial support in addition to paying all of her separate household bills and the child-care expenses. Moreover, she contributed between $1.5 and $2 million for the husband's real estate projects, which, with abundant consistency, failed to produce reliable or substantial income. Beyond that, the evidence showed that the wife undertook the combined roles of full-time lawyer, primary homemaker, and primary parent of the parties' three children, all with, at best, marginal help from the husband. As the family grew over the years of the marriage and the professional and personal demands on the wife increased, the husband, rather than helping to a greater extent, refused to spend additional time where the wife resided to help her with their three children. Additionally, when the wife's law practice was failing and she needed the husband's help, he refused. The husband's reaction was selfish and self-centered and where, as here, the wife would be expected to look to the other spouse for emotional and financial support, the husband provided neither.

In rejecting the contention that the unequal distribution was punitive, the appellate court noted that while it is true that where a marriage is of long duration a court does not distribute marital property unequally unless there is a finding of marital or economic fault, here, based upon the unusual circumstances, the record fully supported such a distribution based solely upon the parties' respective, unequal contributions to the marriage. The court below had specifically pointed out that in addition to the wife's financial contributions her contributions as the primary homemaker and caretaker, particularly her assumption of almost all of the child-rearing responsibilities, served as a basis for awarding the wife the greater share of the marital assets. Moreover, there was evidence that the husband repeatedly appropriated money and converted personalty, including that set aside for the children's education, for his own purposes while ignoring the wife's pleas for assistance, and that he even refused the wife's request that he liquidate some of his real estate holdings to produce needed cash, all the while earning no appreciable income to support either himself or his family. The record, therefore, amply supported the unequal distribution in favor of the wife.

Second, as to the husband's claim that the court below failed to value properly the wife's law practice, the appellate court also affirmed the trial court's determination that her practice had no value. The wife offered evidence that the firm's tax liabilities and other debts exceeded any assets. When the husband failed to provide any evidence to the contrary, the trial court correctly found that the practice had no value. That the court-appointed independent accountant did not perform an analysis of the value of the contingency fee cases, which the firm possessed on the valuation date, did not warrant a different result as the husband, who claimed an entitlement to a portion of such property, failed to offer any evidence that the value of such contingency fee cases exceeded the firm's liabilities. He failed, therefore, to meet his burden of proof in this regard.

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