The Freedom to Factor in Mediation

The Freedom to Factor in Mediation by Sandy Balick

{3:12 minutes to read} In concluding this series on Equitable Distribution in mediation, I want to circle back to a topic introduced in my first installment: That equitable distribution is not necessarily equal distribution. This being the case, how are parties to divide their assets and liabilities in the process of winding up their marital estates?

Left to a court to decide, the 14 criteria established by New York’s recent revamp of its equitable distribution law would be applied to the facts of the case. A glance at some recent opinions confirms that many judges go to great lengths to parse out competing spousal claims to assets and marital debts.

As a practical matter, not only are couples in mediation free (but not legally obliged) to apply these mostly common-sense factors, they are, in reality, applying at least some of these factors, whether specifically conscious of this fact or not.

Examples include some basic data factors such as:

  • The incomes at the time of marriage and at the time of divorce (1);
  • The length of the marriage and the respective health of the spouses (2); and 
  • Whether maintenance is being paid (6).

A few require more analysis such as:

  • Whether assets are in cash or tied up in homes and other tangible assets (8).

An important one is retooled from the prior list of criteria — it looks to spousal contributions that are direct (building a business) or indirect (contributions “including joint efforts or expenditures and contributions and services as spouse, parent, wage earner and homemaker and to the career or potential career of the other party.”)

The list ends with a catchall allowing for consideration of “any other factor which the court shall expressly find to be just and proper.” In short, mediation affords couples the opportunity to utilize, at much less cost, the criteria the court have found useful in resolving asset distribution in divorce. (If you’ve had a strong cup of coffee you can ferret through the equitable distribution and find all 14 factors in DRE Part B 5. D.)

Divorcing couples have considerable freedom to shape the distribution of their assets and liabilities. Our courts have detailed criteria with which to make these decisions for couples that cannot do so on their own. But with knowledge of basic distribution rules and considerations, couples are perfectly capable of arriving at their own solutions, a result greatly aided by the mediation process.

Sanford (Sandy) Balick, Attorney & Mediator, NY Sandy Balick signature
Sanford E. Balick, Esq.
Founder & Principal Mediator
Consensus Point Mediation, LLC.

Phone: (646) 340-3434
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