There is no such thing as a normal or typical divorce, every case is different. Sometimes a case I expect to be difficult ends up being easy, while other straightforward cases can sometimes become quite challenging. Equitable distribution is no exception. Different clients have different assets (and debts) to divide – homes, retirement accounts, IRAs, 401(k), Keogh plans, businesses, vacation homes, time shares, art, jewelry, yachts, trusts, and the list can go on and on.   The starting premise is that assets that were owned prior to the marriage are not subject to equitable distribution. However, if that asset is commingled with marital assets it can lose that identity and be subject to equitable distribution. Obviously, this standard can create disagreements with both parties attempting to exclude their assets, but include their former spouse’s assets.

Recently in an unpublished Appellate Division decision, Mekhail v. Mekhail, App. Div. decided February 2, 2010, the Appellate Decision reviewed a judgment involving equitable distribution and alimony issued following a trial. In Mekhail, plaintiff-wife sued defendant-husband for divorce on October 9, 2007.  The case was tried and judgment was entered on November 21, 2008.  Defendant appealed, arguing that the trial judge erred by: (1) failing to make adequate findings of fact respecting alimony; (2) arbitrarily awarding plaintiff 25% of defendant’s retirement account; and (3) directing that each party remain responsible for their own credit card debt.  At trial, plaintiff sought to exclude an IRA account with a $15,000 balance, a retirement account with an $18,000 balance, and a Vanguard account with a $36,000 balance. Plaintiff alleged that these accounts were premarital and not subject to equitable distribution. Meanwhile, defendant had a 401(k) account with a $50,000 balance. Because sufficient evidence was presented to the trial court about the plaintiff’s accounts being premarital, they were not subject to equitable distribution. Yet, the trial judge ordered defendant to give 25% of his 401(k) to plaintiff as part of equitable distribution. Of their joint assets, defendant received about $137,500 and plaintiff received about $112,000.  Given the facts, the Appellate Division did not find the trial judge decision arbitrary and affirmed the decision and equitable distribution.

Mekhail is an excellent example of how various assets can be subject (or not be subject) to equitable distribution. That is why when people ask about equitable distribution, the only thing I can really say is – “it depends.”

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