Equitable is Not Equal and Temporary is Not Permanent

Equitable Is Not Equal

In a recent trial court decision the ruling reinforced the principle that marital assets need not be distributed on a 50/50 basis to the divorcing couple. The court in distributing marital assets must determine on an asset-by-asset basis what a fair distribution would be. That determination is based upon a number of factors. While one asset (for example the marital residence) may be distributed 50/50, another asset (for example a business owned by one or both of the parties) may be distributed on some other percentage basis. The court in V.M. v. N.M. held that the business owned by the husband should be distributed in the divorce judgment on a 30/70 basis. The wife was held to a 30% interest in the business based upon the following facts and circumstances: a marriage of 23 years, 2 children for whom the wife was the primary caregiver and the wife was actively engaged in the husband’s business until their first child was born.

Temporary is Not Permanent

The court in V.M. v. N.M. also held that temporary maintenance guidelines are inapplicable to an award of permanent maintenance. Maintenance is spousal support – what a financially independent spouse is required to pay to a financially dependent spouse. Temporary maintenance is what must be paid during the pendency of the divorce action (which is typically between nine and eighteen months but can often be for shorter or longer periods). Permanent maintenance is what must be paid pursuant to a judgment of divorce after the case has been resolved. Permanent maintenance may be for a specified period of time (durational maintenance) or for the life of the recipient (non-durational maintenance). By NY statute there is a formula which is used to calculate the amount of temporary maintenance. This case makes clear that the formula is not applicable to determining the amount of permanent maintenance. Consequently, what you may be paying or receiving during the pendency of the action is not determinative of what you will be paying or receiving once the case is concluded.

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