Equitable Distribution Law for Trial CounselBy Joel R. Brandes  I. Stare Decisis A precedent is a decided case that furnishes a basis for determining later cases involving similar facts or issues. Black's Law Dictionary, 10th Ed.2014). The language of any opinion must be confined to the facts before the court. No opinion is an authority beyond the point actually decided. Dougherty v. Equitable Life Assur. Soc. of United States, 193 N.E. 897, 902, 266 N.Y. 71, 88 (1934). Dicta is a judicial comment made while delivering a judicial opinion, that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). Black's Law Dictionary (10th ed. 2014). Dicta in an opinion does not become precedent.A he doctrine of stare decisis provides that once a court has decided a legal issue, subsequent cases presenting similar facts should be decided in conformity with the earlier decision. People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474, 558 N.E.2d 1011 (1990); Battle v. State, 257 A.D.2d 745, 682 N.Y.S.2d 726 (3d Dep=t 1999). Thus, the decisions of the Court of Appeals which have not been invalidated by changes in statute, decisional law, or constitutional requirements must be followed by all lower courts,.Battle v. State, 257 A.D.2d 745, 682 N.Y.S.2d 726 (3d Dep=t 1999). The doctrine of stare decisis requires trial courts in one department to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division in that Department pronounces a contrary rule. While an Appellate Division should accept the decisions of sister departments as persuasive it is free to reach a contrary result. Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (2 Dept.,1984). Trial courts within a Department must follow the determination of the Appellate Division in another Department until such time as the Appellate Division of that Department or the Court of Appeals passes on the question. II. Personal Knowledge A witness must have personal knowledge of the facts to which he or she testifies. The requirement that a witness have personal knowledge of the facts to which she testifies is fundamental in the law of evidence.1 McCormick on Evidence (5th Ed.) ' 10. See, e.g., People v. Di Loretto, 150 A.D.2d 920, 922, 541 N.Y.S.2d 260, 261 (3d Dep=t). Wigmore defined personal knowledge as Aan impression derived from the exercise of [the witness=] own senses, not from the reports of others.@ 2 Wigmore ' 657, at 889. See Hallenbeck v. Vogt, 9 A.D.2d 836, 192 N.Y.S.2d 945 (3d Dep=t 1959). See also Overseas Trust Bank v. Poon, 181 A.D.2d 762, 763, 581 N.Y.S.2d 92, 93 (2d Dep=t 1992). Evidence to prove personal knowledge may, but need not, consist of the witness= own testimony. The rule providing that a witness may not testify to matter unless there is evidence sufficient to support a finding that he has personal knowledge of the matter excludes testimony concerning matters the witness did not observe or had no opportunity to observe. 1 McCormick On Evidence, 5th Ed. $ 10; See e.g. People v Di Loretto, 150 AD2d 920, 541 NYS2d 260 (3 Dept ); Hallenback v Vogt, 9 AD2d 836, 192 NYS2d 945 (3 Dept 1959); Overseas Trust Bank v Poon, 181 AD2d 762, 581 NYS2d 92 (2 Dept 1992).
III. Court not bound by party's own account of his or her finances A court is not bound by a party's own account of his or her finances. Where a party fails to trace the sources of money claimed to be separate property, the court is justified in treating it as marital property. Saasto v. Saasto, 211 A.D.2d 708, 709 ( 2 Dept.,1995); George v. George, 656 N.Y.S.2d 1016, 1017, 237 A.D.2d 894, 894 (4 Dept. 1997); Murphy v. Murphy, 772 N.Y.S.2d 355, 356B57, 4 A.D.3d 460, 461 ( 2 Dept.,2004)
IV Equitable Distribution Process The process of making an equitable distribution contemplates the separation of marital property and separate property as defined in Domestic Relations Law '236 [B][1), the evaluation of the marital property, and then its allocation pursuant to the factors enumerated in Domestic Relations Law '236[B] (5)(d). The trial court must set forth the factors it considered and the reasons for its decisions. The entire basis for the Equitable Distribution Law derives from the concept that marriage is an economic partnership and, therefore, that marital property should be divided equitably without regard to the title in which that property is held. see Fields v. Fields, 15 N.Y.3d at 162, 905 N.Y.S.2d 783, 931 N.E.2d 1039; Price v. Price, 69 N.Y.2d 8, 14B15, 511 N.Y.S.2d 219, 503 N.E.2d 684 . >[W]hether a particular asset is marital or separate property is a question of law= @ .Fields v. Fields, 15 N.Y.3d 158, 161, 905 N.Y.S.2d 783, 931 N.E.2d 1039 , quoting DeJesus v. DeJesus, 90 N.Y.2d 643, 647, 665 N.Y.S.2d 36, 687 N.E.2d 1319  V. Best Evidence Rule The best evidence rule Arequires the production of an original writing where its contents are in dispute and sought to be proven@. Schozer v William Penn Life Ins. Co. of N.Y. , 84 NY2d 639, 643 ).The best evidence rule requires the production in evidence of books, records, and the like whenever they are obtainable. Lipschitz v. Stein, 10 A.D.3d 634, 781 N.Y.S.2d 773 (2d Dep't 2004) (receptionist's log book); Union Nat. Bank of Franklinville v. Dean, 154 A.D. 869, 139 N.Y.S. 835 (4th Dep't 1913). Secondary evidence regarding the contents of books, offered by a party in whose possession they had been, is not admissible without laying a foundation and showing why they could not be produced. Union Nat. Bank of Franklinville v. Dean, 154 A.D. 869, 139 N.Y.S. 835 (4th Dep't 1913). 57 N.Y. Jur. 2d Evidence and Witnesses ' 247.
Proof of the amount in a checking, savings or brokerage accounts is evidenced by account statements. Michaelson v. Michaelson (3 Dept. 1992) 180 A.D.2d 855, 580 N.Y.S.2d 87. Thus, proof of the amount in an account on the date in question, one half of which was to be paid to wife in divorce action, was the amount actually in the account on that day, as evidenced by the account statements, rather than that amount less the amount of checks drawn on account which were outstanding on that day; until the checks were cashed, they could be cancelled by husband and, thus, he still had access to amount actually in accounts. Michaelson v. Michaelson (3 Dept. 1992) 180 A.D.2d 855, 580 N.Y.S.2d 87. Testimony about the amount in a bank account or financial institution violates the best evidence rule. See DuValle v. Swan Lake Resort Hotel, LLC, 26 A.D.3d 616, 809 N.Y.S.2d 625, 2006 N.Y. Slip Op. 01065 (3d Dept., 2006) ( summary judgment was properly granted on the claim seeking reimbursement for COBRA health insurance payments. When plaintiff was not permitted to introduce the canceled checks evidencing her payments, defendant argued that the claim could not be properly established since both the obligation to pay and the amount were in dispute. While plaintiff contended, in opposition, that such amounts could be established through her direct testimony, such testimony would violate the best evidence rule (see Matter of Carrington, 163 App.Div. 544, 546, 148 N.Y.S. 952 ; compare Rotanelli v. Longo, 210 A.D.2d 392, 392, 620 N.Y.S.2d 130 ; Savago v. Payne, 170 A.D.2d 850, 852, 566 N.Y.S.2d 677  ) since the absence of the checks was not properly excused (see Schozer v. William Penn Life Ins. Co. of N.Y.,84 N.Y.2d 639, 644, 620 N.Y.S.2d 797, 644 N.E.2d 1353  ). VI. Marital Property Domestic Relations Law ' 236 defines Amarital property@ as Aall property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held@ .Domestic Relations Law ' 236 [B]  [c]. The definition of marital property excludes property acquired by a spouse after the commencement of the action. Dom Rel Law ' 236(B)(1)(c)); Vora v. Vora, 268 A.D.2d 470, 471, 702 N.Y.S.2d 343, 344 (2d Dept., 2000). However, automatic accretions to marital property stemming solely from the incidents of ownership retain the character of their source as marital property, even when realized after the action has begun. In Brennan v. Brennan, 103 A.D.2d 48, 54, 479 N.Y.S.2d 877 (1984) the Appellate Division held that error was committed in Trial Term's total exclusion from equitable distribution of the interest which accrued after the commencement of the action on the certificates of deposit and the bond fund in the husband's name. AIn our opinion, automatic accretions to marital property stemming solely from the incidents of ownership retain the character of their source, even when realized after the action has begun. Therefore, the accrued interest on these marital funds should have been subject to equitable distribution.@ The Court of Appeals has held that marital property should be Aconstrued broadly in order to give effect to the >economic partnership= concept of the marriage relationship@ Price v Price, 69 NY2d 8, 15 . By contrast, separate propertyCdenoted as an exception to marital propertyCshould be construed Anarrowly@ (id). see Majauskas v Majauskas, 61 NY2d 481, 489 ).
The law favors the inclusion of property within the marital estate, and, accordingly, Athe party seeking to establish that a particular item is indeed separate property bears the burden of proof.@ LeRoy v. LeRoy, 274 A.D.2d 362 [1st Dept.,2000], citing Seidman, 226 A.D.2d at 1012, 641 N.Y.S.2d 431; Heine v. Heine, 176 A.D.2d 77, 83 [1st Dept.,1992]. The structure of section 236 creates a statutory presumption that Aall property, unless clearly separate, is deemed marital property@ and the burden rests with the titled spouse to rebut that presumption. DeJesus v DeJesus, 90 NY2d at 652; Fields v. Fields, 15 N.Y.3d 158, 161B63, 931 N.E.2d 1039 (2010). VII. Property Acquired after the Commencement with Marital Funds Property acquired by a spouse after the commencement of the action becomes marital property where the source of the funds to acquire it is traceable to marital property, or where it is acquired from the increase in value of marital property or where it is the product of a sale or exchange of marital property. Woodson v Woodson (1991, 2d Dept) 178 App Div 2d 642, 578 NYS2d 217; Ducharme v. Ducharme, 145 A.D.2d 737, 738, 535 N.Y.S.2d 474 (2d Dept.,1988); Siegel v. Siegel, 132 A.D.2d 247, 254-55, 523 N.Y.S.2d 517 (2d Dept.,1987); Glazer v. Glazer, 190 A.D.2d 951, 953, 593 N.Y.S.2d 905, 907 (3d Dept.,1993); Gurbacki v. Gurbacki, 270 A.D.2d 807, 708 N.Y.S.2d 761 (4th Dep't 2000)); Van Dyke v. Van Dyke, 273 A.D.2d 589, 709 N.Y.S.2d 672 (3d Dep't 2000); Gurbacki v. Gurbacki, 270 A.D.2d 807, 708 N.Y.S.2d 761 (4th Dep't 2000); Haas v. Haas, 265 A.D.2d 887, 695 N.Y.S.2d 644 (4th Dep't 1999). This is so regardless of whether sole title was taken in one spouse's name. Capasso v. Capasso, 129 A.D.2d 267, 517 N.Y.S.2d 952 (1st Dep't 1987)
VIII. Separate Property Domestic Relations Law ' 236 specifies that marital property does not include Aseparate property@ and the statute sets forth four categories of property that constitute separate property: A(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; A(2) compensation for personal injuries; A(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; A(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part@. Domestic Relations Law ' 236 [B]  [d].
Separate property includes @property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouseA .Domestic Relations Law ' 236 [B]  [d] ; Price v. Price, 69 N.Y.2d 8, 11, 503 N.E.2d 684 (1986). IX. Burden of Proof of Separate Property A party who claims that property is separate has the burden of proving it is separate. Heine v. Heine, 176 A.D.2d 77, 580 N.Y.S.2d 231 (1st Dep't 1992); Sclafani v. Sclafani, 178 A.D.2d 830, 577 N.Y.S.2d 711 (3d Dep't 1991). AProperty acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property@. Marshall v. Marshall, 91 A.D.3d 610, ;937 N.Y.S.2d 253 (2d Dept., 2012). See also D=Angelo v. D=Angelo, 14 A.D.3d at 477, 788 N.Y.S.2d 154 and cases cited therein. When an asset is acquired during the marriage, a party=s own testimony that the source of the funds used to acquire it are premarital or separate property, without more, is insufficient to overcome the presumption that the property is marital property. Rosenberg v. Rosenberg, 145 A.D.3d 1052 (2d Depth., 2016); Saasto v. Saasto, 211 A.D.2d 708, 709 ( 2 Dept.,1995); Steinberg v. Steinberg, 874 N.Y.S.2d 230, 232, 59 A.D.3d 702, 704 (2 Dept.,2009); See also D'Angelo v. D'Angelo, 14 A.D.3d at 477, 788 N.Y.S.2d 154; Farag v. Farag, 4 A.D.3d at 503, 772 N.Y.S.2d 368). In Saasto v. Saasto, 211 A.D.2d 708, 709 ( 2 Dept.,1995) the Appellate Division observed that that although the defendant claimed that the mortgage note was repaid with his separate funds, he offered no evidentiary support for this assertion beyond his own testimony. Thus, the court properly declined to credit the defendant with the above amounts as separate property.@
X Burden of Poof of Separate Property -Tracing assets to their source Where a party fails to trace the source of deposits claimed to be separate property, the court is justified in treating them as marital property. Lischynsky v. Lischynsky, 120 A.D.2d 824, 826, 501 N.Y.S.2d 938 (3d Dep't 1986); Sarafian v. Sarafian, 140 A.D.2d 801, 803‑04, 528 N.Y.S.2d 192 (3d Dep't 1988); Hymowitz v. Hymowitz, 119 A.D.3d 736, 991 N.Y.S.2d 57 (2d Dep't 2014). Where there is any doubt as to the source of funds used to acquire property during the marriage or as to the extent of individual and partnership contributions of the respective parties towards acquisition, such doubts are to be resolved in favor of a finding that disputed assets or property are marital property. See Fields v. Fields, 15 N.Y.3d 158, 905 N.Y.S.2d 783, 931 N.E.2d 1039 (2010).
Where a party credit for separate property sums contributed to the purchase of the marital residence his or her self-serving testimony is insufficient to establish that the source of the funds came from his separate property. Horn v Horn, 145 A.D.3d 666, 667, 2016 N.Y. Slip Op. 08198, 1 (,2016). In Horn v Horn, 145 A.D.3d 666, 667, 2016 N.Y. Slip Op. 08198, 1 (2016) where the Appellate Division found that Supreme Court providently exercised its discretion in precluding defendant from offering documentary evidence in support of his claim for a separate property credit as to the purchase of the marital residence, the defendant's self‑serving testimony was insufficient to satisfy his burden of establishing that the source of the funds for the down payment on the marital residence came from his separate savings so as to establish his entitlement to a separate property credit. (Citing McLoughlin v McLoughlin, 63 AD3d 1017 ; Romano v Romano, 40 AD3d 837 ; Heine v Heine, 176 AD2d 77 [1st Dept., 1992]). In McLoughlin v. McLoughlin, 63 A.D.3d 1017, 1019, 2009 N.Y. Slip Op. 05302, (2009) the Appellate Division held that the Supreme Court improperly awarded the plaintiff a credit in the sum of $25,000 for a separate property contribution toward the purchase of the marital residence. Although the plaintiff testified that $25,000 of the down payment on the marital residence was paid with her separate funds, she offered no other evidentiary support for her claim (see Romano v Romano, 40 AD3d 837, 838 ; Murphy v Murphy, 4 AD3d 460, 461 ). Since the plaintiff failed to meet her burden of establishing that the $25,000 was separate property, she was not entitled to a credit. XII-Transmutation and Co-mingling Transmutation is a change in the nature of something; esp., in family law, the transformation of separate property into marital property, or of marital property into separate property. Black's Law Dictionary (10th ed. 2014). New York=s emphasis on the product of the marital partnership led to a rejection of the automatic transmutation doctrine. 3 Freed, Brandes and Weidman, Law and the Family New York, 2d Ed Rv, '2:10. Under Domestic Relations Law ' 236(B)(1)(d) commingled assets that may be traced to a separate property source may retain that characteristic, assuming the Aseparate property@ source is separate property under the statutory definition. However, the transferring of separate property into the joint names of the parties, or commingling separate property with marital property will transmute it into marital property, unless it is established that there was no intention to make it marital property.
The commingling of separate property with marital property may transmute (convert) the separate property into marital property if a donative intent is found or it is impossible to trace the assets to their source. The closest thing to the doctrine of transmutation that we have in New York is the rebuttable presumption that arises under section 675 of the Banking Law. Under Banking Law ' 675 (a) a deposit of cash, securities or other property in a joint account with rights of survivorship (payable to either or the survivor) creates a moiety for the co-depositor and becomes the property of such persons as joint tenants. Under the Banking Law 675 a rebuttable presumption of co-ownership arises when separate funds are deposited in a joint account with rights of survivorship. Unless it is clearly shown that there was no donative intent, as for example where the deposit was a mere matter of convenience, the joint account is marital property for distribution purposes in the event of a legal dissolution of the marriage. In this instance the commingling or deposit of separate property into marital property may be said to convert separate property into marital property. 3 Freed, Brandes and Weidman, Law and the Family New York, 2d Ed Rv, '2:10. The presumption is rebuttable, DiNardo v. DiNardo, 144 A.D.2d 906, 534 N.Y.S.2d 25 (4th Dep=t,1988);Pauk v. Pauk, 232 A.D.2d 386, 648 N.Y.S.2d 621 (2d Dep=t 1996). Commingling generally occurs when separate funds are deposited in a marital account through a deliberate act by the separate property holderCwhich is presumed to be a gift to the marriageCwith the deposited funds thereby losing their character as separate property. see Fehring v. Fehring, 58 A.D.3d 1061, 1062, 874 N.Y.S.2d 266 ; Schwalb v. Schwalb, 50 A.D.3d 1206, 1209, 854 N.Y.S.2d 802 ; Chiotti v. Chiotti, 12 A.D.3d at 996, 785 N.Y.S.2d 157; Ceravolo v. DeSantis (3 Dept. 2015) 125 A.D.3d 113, 1 N.Y.S.3d 468. Commingling separate property with marital property funds can result in the separate property becoming marital property. see Schwalb v. Schwalb, 50 A.D.3d 1206, 1209, 854 N.Y.S.2d 802 ; Judson v. Judson, 255 A.D.2d 656, 657, 679 N.Y.S.2d 465  ). Commingling only a part of separate property does not necessarily result in other separate property that has not been commingled being transmuted to marital property. See Chernoff v. Chernoff, 31 A.D.3d 900, 903, 821 N.Y.S.2d 276 . There is a presumption that separate assets commingled with property acquired during the course of the marriage are marital property. Di Nardo v. Di Nardo, 144 A.D.2d 906, 534 N.Y.S.2d 25; Lischynsky v. Lischynsky, 120 A.D.2d 824, 501 N.Y.S.2d 938). Separate property which is commingled with marital property or is subsequently titled in the joint names of the spouses is presumed to be marital property for purposes of distribution. Chiotti v. Chiotti, 12 A.D.3d 995, 996, 785 N.Y.S.2d 157 ; see Gately v. Gately, 113 A.D.3d 1093, 1094, 978 N.Y.S.2d 550 ; see also Vertucci v. Vertucci, 103 A.D.3d 999, 1003, 962 N.Y.S.2d 382 );Ceravolo v. DeSantis (3 Dept. 2015) 125 A.D.3d 113, 1 N.Y.S.3d 468. The party seeking to rebut that presumption must adequately trace the source of the funds (Sarafian v. Sarafian, 140 A.D.2d 801, 528 N.Y.S.2d 192); Pappas v. Pappas, 36 N.Y.S.3d 661, 663, 140 A.D.3d 838, 840 (2 Dept.,2016); Kirshenbaum v. Kirshenbaum, 611 N.Y.S.2d 228, 229, 203 A.D.2d 534, 535 (N.Y.A.D. 2 Dept.,1994); Pullman v. Pullman, 573 N.Y.S.2d 690, 691B92, 176 A.D.2d 113, 114 (1 Dept.,1991).
The use of marital property or funds to improve separate property does not transmute the separate property into marital property. Ceravolo v. DeSantis, 125 A.D.3d 113, 1 N.Y.S.3d 468 (3d Dep=t 2015). The use of funds withdrawn from an account that is separate property to pay marital expenses does not change the character of the account to marital property (see Robinson v. Robinson, 133 A.D.3d 1185, 1190, 21 N.Y.S.3d 392  ); Giannuzzi v. Kearney, 160 A.D.3d 1079, 1081 (N.Y.A.D. 3 Dept., 2018). Separate property contributions made by a nontitled spouse toward the acquisition or improvement of premarital separate property can not serve to transform such property into a marital asset. Ceravolo v. DeSantis, 1 N.Y.S.3d 468, 471, 125 A.D.3d 113, 117 ( 3 Dept.,2015) A parcel of real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse. Macaluso v Macaluso, 124 A.D.3d 959, 961B62, 2015 N.Y. Slip Op. 00265, 2 (3 Dept, 2015) citing Ceravolo v DeSantis (125 AD3d 113 ),
However, separate property contributions by a nontitled spouse could result in an appreciation of the value of the titled spouse's separate property during the marriage, which appreciation would be subject to equitable distribution. see Domestic Relations Law ' 236[B][d]; Keil v. Keil, 85 A.D.3d at 1235, 926 N.Y.S.2d 173; Ceravolo v. DeSantis, 1 N.Y.S.3d 468, 471, 125 A.D.3d 113, 117 (3 Dept.,2015).
XIII- Distinguishing Popowich As demonstrated above Commingling generally occurs when separate funds are deposited in a marital account through a deliberate act by the separate property holderCwhich is presumed to be a gift to the marriageCwith the deposited funds thereby losing their character as separate property.
Popowich v. Korman (1 Dept. 2010) 73 A.D.3d 515, 900 N.Y.S.2d 297 could be construed as holding that a separate account is wholly converted into marital property when the a spouse deposits marital funds into that account . However, that is not what Popowich held. It held that the separate brokerage account was marital property for the same reason the bank account in Fields v Fields was marital property: Abecause the husband commingled numerous marital funds in this account and failed to trace them sufficiently to delineate what might have been separate property@ (id. at 302 n. 3, 882 N.Y.S.2d 67). it reached this conclusion because there was no effort to trace over the course of the marriage the property in the account at the commencement date. While commingling of premarital assets with marital assets creates a presumption that the separate property which was commingled has become marital property, such a situation usually arises where separate property is deposited into a joint, marital account, not the other way around, as defendant asserted was the case in Popowich (see e.g. Judson v. Judson, 255 A.D.2d 656, 657, 679 N.Y.S.2d 465  ). By actively putting separate property in a joint account, it is presumed that the party doing so intended to make a gift of the separate property to the other spouse. As the cases hold, however, this presumption can be rebutted (see Lagnena v. Lagnena, 215 A.D.2d 445, 446, 626 N.Y.S.2d 542  ). In Fields v. Fields, 65 A.D.3d 297, 882 N.Y.S.2d 67  the Court noted that a certain account at Citibank Awas marital property because the husband commingled numerous marital funds in this account and failed to trace them sufficiently to delineate what might have been separate property@ (id. at 302 n. 3, 882 N.Y.S.2d 67). In Fields, the plaintiff husband and his mother opened the Citibank account some 12 years after the parties= marriage and then, upon the parties= divorce, claimed that his portion of the account was his separate property. In Kirshenbaum v. Kirshenbaum, 203 A.D.2d 534, 611 N.Y.S.2d 228  and Pullman v. Pullman, 176 A.D.2d 113, 573 N.Y.S.2d 690  the Court held that where property is acquired during the marriage, the acquired property is presumed to be marital property unless one party can adequately trace the acquisition to separate funds. See Pullman, 176 A.D.2d at 114, 573 N.Y.S.2d 690; Kirshenbaum, 203 A.D.2d at 535, 611 N.Y.S.2d 228).
In Kirshenbaum v. Kirshenbaum, 611 N.Y.S.2d 228, 229, 203 A.D.2d 534, 535 (N.Y.A.D. 2 Dept.,1994) the Appellate Division held that Supreme Court properly considered 9,750 disputed shares of stock in New Plan Realty Trust as marital property rather than as the husband's separate property, since the husband failed to rebut the presumption which arose from his commingling of the funds used to purchase these shares with other marital funds (citing Pullman v. Pullman, 176 A.D.2d 113, 573 N.Y.S.2d 690; Lischynsky v. Lischynsky, 120 A.D.2d 824, 501 N.Y.S.2d 938). This stock was presumably purchased during the marriage. In Pullman v. Pullman, 573 N.Y.S.2d 690, 691B92, 176 A.D.2d 113, 114 (N.Y.A.D. 1 Dept.,1991) Supreme Court, credited the testimony of defendant‑husband that he possessed a substantial amount of cash at the time of the marriage which he applied to the acquisition of many of the couple's various possessions. Supreme Court determined that most of the parties' assets did not constitute marital property and awarded them entirely or in large part to defendant. The court found that only a small portion of the parties' total assets were actually marital property, and this remainder was distributed equally between plaintiff and defendant. This Court stated that there is a presumption that assets commingled with other property acquired during the course of the marriage are marital property (citing Di Nardo v. Di Nardo, 144 A.D.2d 906, 534 N.Y.S.2d 25; Lischynsky v. Lischynsky, 120 A.D.2d 824, 501 N.Y.S.2d 938). The party seeking to rebut that presumption must adequately trace the source of the funds (Sarafian v. Sarafian, 140 A.D.2d 801, 528 N.Y.S.2d 192). Yet, the Supreme Court, despite characterizing as Asparse@ defendant's evidence that he had approximately $750,000, evidently maintained in a safe deposit box, at the time of his marriage, still concluded that the majority of the couple's assets was not marital property. This was error. In the absence of clear proof that defendant possessed this money when he and plaintiff married, all of the parties' assets should have been deemed marital property and, under the circumstances herein, distributed equally. The defendant did not sufficiently establish that he entered into the marriage with the resources claimed by him such as would justify the inequality of the property division that occurred herein. Consequently, a new accounting of the marital property was mandated.
XIV Appreciation in value of separate property A spouse who claims that the post-commencement increase in value of separate property was active and, therefore, separate property, must show that the increase was due solely to his or her efforts. Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 421B22, 909 N.E.2d 62, 65B66 (2009); see also, Breese v. Breese, 256 A.D.2d 433, 681 N.Y.S.2d 606 (2d Dept. 1998); Barbuto v. Barbuto, 286 A.D.2d 741, 730 N.Y.S.2d 532 (2d Dept. 2001); Scharfman v. Scharfman, 19 A.D.3d 474, 800 N.Y.S.2d 175 (2d Dept.2005). When a non-titled spouse's claim to appreciation in the other spouse's separate property is predicated solely on the non-titled spouse's indirect contributions, some nexus between the titled spouse's active efforts and the appreciation in the separate asset is required. Price v Price 69 NY2d 8, 511 NYS2d 221 (1986). In determining if a non-titled spouse contributed to the appreciation of separate property, he or she is not required to establish a substantial, almost quantifiable connection between the titled spouse's efforts and the appreciated value of the property. Domestic Relations Law '236(B)(5)(d)(6) explicitly recognizes that indirect contributions of the non-titled spouse (e.g., services as spouse, parent and homemaker, and contributions to the other party's career or career potential) are relevant in the equitable disposition calculations just as direct contributions are. Thus, to the extent that the appreciated value of separate property is at all Aaided or facilitated" by the non-titled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution. Hartog v Hartog, 85 NY2d 36, 623 NYS2d 537, 647 NE2d 749 (1995) Where an asset, like an ongoing business, is, by its very nature, non-passive and sufficient facts exist from which the factfinder may conclude that the titled spouse engaged in active efforts with respect to that asset, even to a small degree, then the appreciation in that asset is, to a proportionate degree, marital property. By considering the extent and significance of the titled spouse's efforts in relation to the active efforts of others and any additional passive or active factors, the factfinder must then determine what percentage of the total appreciation constitutes marital property subject to equitable distribution. Hartog v Hartog, 85 NY2d 36, 623 NYS2d 537, 647 NE2d 749 (1995) XV- Credit for Separate property Contribution to Marital Property
A party may be entitled to a credit for a separate property contribution to marital property if he adequately traces the source of the funds to his separate property. In Evans v. Evans, 851 N.Y.S.2d 519, 520, 48 A.D.3d 322, 323 (1 Dept.,2008) the Defendant was not entitled to an additional separate property credit from the proceeds of the sale of the marital residence because, as the trial court found, she failed to establish that her separate money, which was commingled with joint funds, was used in the purchase of the residence. Significantly, Eve did not transmute or commingle her separate property or otherwise take any affirmative act‑such as a conveyance to the parties, jointlyCthat could be perceived as a gift to the marriage so as to transform her residences or separate checking and brokerage accounts into marital property. See e.g. Myers v. Myers, 119 A.D.3d 1114, 1115, 989 N.Y.S.2d 537 ; Alecca v. Alecca, 111 A.D.3d 1127, 1128, 975 N.Y.S.2d 801 ; Campfield v. Campfield, 95 A.D.3d 1429, 1429, 944 N.Y.S.2d 339 ; Ceravolo v. DeSantis, 1 N.Y.S.3d 468, 472, 125 A.D.3d 113, 118B19 ( 3 Dept.,2015) XVI- Marriage as Economic Partnership In recognizing marriage as an economic partnership, Domestic Relations Law ' 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider fourteen statutory factors. Domestic Relations Law 236[B][d] in effect at the date of the commencement of this action provides that in determining an equitable disposition of property under paragraph c, the court shall consider: (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties; (3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; (5) the loss of health insurance benefits upon dissolution of the marriage; (6) any award of maintenance under subdivision six of this part; (7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (8) the liquid or non‑liquid character of all marital property; (9) the probable future financial circumstances of each party; (10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; (11) the tax consequences to each party; (12) the wasteful dissipation of assets by either spouse;(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and (14) any other factor which the court shall expressly find to be just and proper. XVII - Necessity for Valuation of Property Domestic Relations Law ' 236 [B] [b] provides, in part that: The valuation date or dates may be anytime from the date of commencement of the action to the date of trial. Courts have discretion to value assets at any time between the commencement date, and the date of trial, and, depending on the particular circumstances of the case, may appropriately fix different valuation dates for different assets. Domestic Relations Law ' 236[B][b] ; Grunfeld v Grunfled, 94 N.Y.2d 696, 731 N.E.2d 142, 709 N.Y.S.2d 486; McSparron v. McSparron, at 288, 639 N.Y.S.2d 265, 662 N.E.2d 745; Kirshenbaum v. Kirshenbaum, 203 A.D.2d 534, 535  The parties are entitled to offer expert testimony and other evidence as to value. See Burns v. Burns, 84 N.Y.2d 369, 375, 643 N.E.2d 80, 83 (1994). As a general rule the A determination must be made as to the net value of each asset before determining the distribution thereof. . D'Amato v. D'Amato, 96 A.D.2d 849, 850, 466 N.Y.S.2d 23; Van Dood v. Van Dood, 142 A.D.3d 661, 662, 36 N.Y.S.3d 718; Rudish v. Rudish, 56 N.Y.S.3d 191, 193B94, 150 A.D.3d 1291, 1293, 2017 WL 2346529, at *2 ( 2 Dept.,2017). The court may not make a distribution of marital property without first determining the value of each marital asset. Capasso v. Capasso (1986, 1st Dep=t) 119 App Div. 2d 268, 506 NYS2d 686. See also Hartog v Hartog, 194 AD2d 286, 605 N.Y.S.2d 749 (1st Dept., 1993) (stocks, bonds and brokerage account) The rationale behind this rule is that the court must know the value of the property it is distributing before making an equitable distribution or distributive award, in order to determine the amount being awarded each spouse. In Capasso v Capasso (1986, 1st Dep=t) 119 App Div. 2d 268, 506 NYS2d 686 the Appellate Division pointed out that the trial court has an obligation to determine the net value of each asset before making a distributive award. Absent unusual circumstances, making valuation unnecessary or unfeasible Aconsideration of the total value of the marital property is essential to the fashioning of a plan of distribution, for it is this total, after all, which has to be apportioned@. The court must state the facts and figures deemed essential in valuation. Valuation has been held to be unnecessary only in cases where cash, stock or liquid assets are equitably distributed Ain kind@, and in pension cases where there is an equitable distribution in accordance with the rule enunciated in Majauskas v Majauskas, 61 NY2d 481 rather than a lump sum distribution. Courts had have ordered an in-kind equitable distribution without valuation, of liquid assets such as stocks and bonds. Spathis v. Spathis, 103 A.D.3d 599, 960 N.Y.S.2d 384 (1st Dep't 2013),( in-kind distribution of the stock shares); Capasso v Capasso, (1986, 1st Dep=t) 119 App Div 2d 268, 506 NYS2d 686. XVIII Burden of Proof - Value The party seeking an interest by way of an equitable distribution, or a distributive award, in marital property titled in the name of the other spouse, has the burden of proving its value at the appropriate valuation date. Antoian v. Antoian, 215 A.D.2d 421, 422, 626 N.Y.S.2d 535 (2nd Dept.1995); LaBarre v. LaBarre, 251 A.D.2d 1008, 674 N.Y.S.2d 235 (4th Dept.1998); Gredel v. Gredel, 128 A.D.2d 834, 513 N.Y.S.2d 754, 755 (2d Dept., 1987); D=Amato v D=Amato (1983, 2d Dept.) 96 App Div. 2d 849, 466 NYS2d 23.
Although marital property is distributed regardless of the form in which title is held this rule has significant consequences in cases where an asset is titled in the name of one spouse. The failure of a spouse to prove the value of an asset or a business titled in the name of the other spouse constitutes a waiver of the right to equitable distribution or a distributive award of the value of that asset or business. See Antoian v. Antoian, 215 A.D.2d 421, 422, 626 N.Y.S.2d 535 (1995); Goudreau v. Goudreau, 283 A.D.2d 684, 685, 86, 724 N.Y.S.2d 123 (3d Dept. 2001); Post v. Post, 68 A.D.3d 741, 743, 890 N.Y.S.2d 581 (2d Dept., 2009) XIX Distribution of Marital Property The Court must distribute marital property "equitably between the parties, considering the circumstances of the case and of the respective parties@. Domestic Relations Law '236 [B][c]. In a marriage of long duration, such as this one, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible. However, there is no requirement that the distribution of each item of marital property be made on an equal basis. Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034 . It is proper for the court to consider the parties= relative economic and non-economic contributions to the marriage in arriving at a formula for the distribution of the marital property (see e.g. Kaplinsky v. Kaplinsky, 198 A.D.2d 212, 213 , citing DRL ' 236(B)(5)(d)(1); Palmer v. Palmer, 156 A.D.2d 651 ; Michalek v. Michalek, 114 A.D.2d 655 ; Kobylack v. Kobylack, 111 A.D.2d 221, 222  ). The fact that one party may have made greater economic contributions to the marriage than the other does not necessarily mean that the former is entitled to a greater percentage of the marital property. Bartek v. Draper, 309 A.D.2d 825, 826 . XX Distributive Award Defined The term Adistributive award@ means payments provided for in a valid agreement between the parties or awarded by the court, in lieu of or to supplement, facilitate or effectuate the division or distribution of property where authorized in a matrimonial action, and payable either in a lump sum or over a period of time in fixed amounts. Distributive awards may not include payments which are treated as ordinary income to the recipient under the provisions of the United States Internal Revenue Code. Domestic Relations Law '236 [B][b] Except where the parties have provided in an agreement for the disposition of their property pursuant to Domestic Relations Law 236 [B], the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, must (1) determine the respective rights of the parties in their separate or marital property, and (2) provide for the disposition thereof in the final judgment. Domestic Relations Law '236 [B][a]
In any action in which the court determines that an equitable distribution is appropriate but would be impractical or burdensome or where the distribution of an interest in a business, corporation or profession would be contrary to law, the court in lieu of such equitable distribution is required to make a distributive award in order to achieve equity between the parties. Domestic Relations Law '236 [B][e] In its discretion, the court may also make a distributive award to supplement, facilitate or effectuate a distribution of marital property. Domestic Relations Law '236 [B][e]. Thus, "equitable distribution@ refers to a physical division or distribution of an equitable share of particular marital property, including liquid assets such as cash or stocks and nonliquid assets such as a house or pension plan. A "distributive award" refers to a "payment" to effectuate or facilitate a division or distribution of marital property. Although an "equitable distribution" of cash or other liquid assets is the physical equivalent of a distributive award, by definition, it would still be an equitable distribution. Domestic Relations Law ' 236 [B] XXI Economic Decisions During Marriage - Mahoney-Buntzman Rule The Court of Appeals has held that Courts should not second-guess the economic decisions made during the course of a marriage. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Where payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts do not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. In Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 421B22, 909 N.E.2d 62, 65B66 (2009) the Court of Appeals observed that AY during the life of any marriage, many payments are made, whether of debts old or new, or simply current expenses. If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. It held that as a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the nontitled spouse exclusively. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.
In Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 421B22, 909 N.E.2d 62, 65B66 (2009) the wife sought to recoup money that was expended during the marriage to pay the husband's obligation to his former spouse for maintenance. The Court of Appeals held that that wife was not entitled to such recoupment. It stated: AExpenditures made during the life of the marriage towards maintenance to a former spouse, as well as payments made pursuant to a child support order, are obligations that do not enure solely to the benefit of one spouse. Payments made to a former spouse and/or children of an earlier marriage, even if made pursuant to court order, are not the type of liabilities entitled to recoupment. This is not to say that every expenditure of marital funds during the course of the marriage may not be considered in an equitable distribution calculation. Domestic Relations Law ' 236(B) (5) (d) (13) expressly and broadly authorizes the trial court to take into account Aany other factor which the court shall expressly find to be just and proper@ in determining an equitable distribution of marital property. There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse's separate property Y. Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a Awasteful dissipation of assets@ (Domestic Relations Law ' 236[B]  [d] ) by his or her expenditures provides protection. The payment of maintenance to a former spouse, however, does not fall under either of these categories. In Johnson v Chapin, 12 N.Y.3d 461 (2009) the Court of Appeals held that the wife was not entitled to the 50% credit representing the money paid during the marriage towards husband's premarital obligations to pay his first wife maintenance and child support. (citing MahoneyBBuntzman v. Buntzman, 12 N.Y.3d 415 
XXII Unvested RSUs and PSUs In DeJesus v. DeJesus, 90 NY 2d 643, 665 NY.S.2d 36 (1997) the Court of Appeals established a rule for the equitable distribution of restricted stock and stock option benefit plans. The issue before the Court of Appeals was whether and to what extent an interest in restricted stock and stock option benefit plans provided by a spouse=s employer constitutes marital property for the purposes of equitable distribution, where the plans come into being during the marriage but are contingent on the spouse=s continued employment with the company after the divorce. The parties were married on October 14, 1979, seven months after the husband had begun his employment with Astoria Financial Corporation. On November 18, 1993, Astoria granted the husband two restricted stock benefit plans, the Incentive Stock Option Plan (ISOP) and the Recognition and Retention Plan (RRP). The ISOP provided for the husband to receive an option to purchase a total of 3,053 shares of Astoria stock at $25 per share, exercisable in three equal annual installments on January 10, 1997, 1998 and 1999. Similarly, the RRP provided for the husband to receive outright a total of 2,036 shares of Astoria stock, in three equal annual installments, beginning on January 10, 1997. Both were contingent on the husband=s continued employment with Astoria and both were described as Aincentive@ for corporate officers. Both stock option plans are qualified deferred compensation plans enjoying favorable tax treatment afforded by the Internal Revenue Code.
The wife commenced the divorce action on July 30, 1994. The parties agreed to divide all marital property equally but requested the court to settle the question of how much of the stock plans constituted marital property subject to the stipulated 50/50 distribution. This issue was resolved upon the submission of trial memoranda from both sides. On these facts, the trial court found that while the husband=s rights to the stock plans Ado not mature immediately and may never mature, depending on whether defendant continues in employment, they are tangible benefits which were bestowed on defendant during the marriage.@ Consequently, the trial court deemed all of the stock plans marital property, to be divided equally, with the husband to serve as constructive trustee of the wife=s shares as they vest. The Appellate Division affirmed, holding that A[c]onsidering the characteristics of the employee benefit plans . . . both plans constituted deferred compensation for employment during the term of the marriage and are entirely marital property.
The Court of Appeals reversed. It observed that Stock plans can vary widely and may possess many of the same characteristics as nonvested pension plans. They can be deferred compensation for past services or incentives for future services. They can be outright gifts or subject to purchase. Here, the trial court, after placing a stipulation of settlement on the record as related to divorce, custody, visitation, distribution of property and maintenance and support obligations, adjourned for written submissions on the remaining open issue, namely the valuation and distribution of the stock plans. Then, without the benefit of any testimony from the husband, the husband=s employer or a stock plan expert, the court distinguished the ISOP and RRP from a third stock benefit plan, the Employee Stock Ownership Plan (ESOP), which the court found to be a fully vested pension plan subject to ERISA. As to the ISOP and RRP, the court declined to apply the Majauskas formula, although it did apply that formula both to the ESOP plan and to another pension, neither of which was contested on appeal. The Appellate Division affirmed, holding that both plans constituted deferred compensation for the period of employment during the marriage and thus were entirely marital property.
The Court of Appeals agreed with the analysis of the Colorado Supreme Court, which held that the marital portion of stock plans is a function of four separate calculations: (1) the relative shares traceable to past and future services must be determined; (2) any portions of the stock plans which are intended as compensation for past services are deemed marital property to the extent that the marriage coincides with the period of the titled spouse=s employment, up until the time of the grant; (3) of that portion intended as incentive for future services, the marital portion is determined by a time rule; and (4) all portions found to be marital property may be divided between the spouses.
The Court found that the lower courts lacked a sufficient basis for their determinations that the husband=s two stock plans constituted deferred compensation for employment during the marriage rather than some portion at least being purely incentive. The record did not reveal whether his employer was rewarding the husband as a valued employee for past services, as well as providing a financial incentive to retain him as an officer. The court did not know if the plans constituted part of a key employee compensation package, what the stock plans represented, or how the husband=s entitlement was calculated. It reversed and remitted. Consequently, a remittal to the trial court was necessary to make specific findings upon further appropriate proceedings.
In deciding upon and applying a rule for the equitable distribution of these stock plans, the Court was guided by the statutory presumption that all property, unless clearly separate, is deemed marital property and recognized the titled spouse=s burden to rebut that presumption. It held that first the trial judge must first determine, based on competent evidence, whether and to what extent the stock plans were granted as compensation for the employee=s past services or as incentive for the employee=s future services. It recognized that any list of pertinent considerations could only be illustrative and not exhaustive. However, relevant factors would include whether the stock plans are offered as a bonus or as an alternative to fixed salary, whether the value or quantity of the employee=s shares is tied to future performance and whether the plan is being used to attract key personnel from other companies.
With regard to that portion found to be compensation for past services, the court enumerated that a time rule should be applied to factor out any value which may be traceable to the period before the marriage, where the numerator is the time from the later of the beginning of the titled spouse=s employment with the issuing company, or the beginning of the marriage, until the date of the grant, and the denominator is the time from the beginning of the titled spouse=s employment until the date of the grant.
With regard to portions found to be granted as incentive, the court enumerated a second time rule to be applied to determine the marital share, where the numerator is the period of time from the date of the grant until the end of the marriage, which is the earlier of the date of the separation agreement or the commencement of the matrimonial action and the denominator is the period of time from the date of the grant until the stock plan matures.
Finally, what is determined to be marital property may then be equitably distributed, generally according to the Judge=s discretion. The Court direct that on remittal, application of the rules it enunciated should resolve the issue of what portions of the plans constituted marital property, reflecting the wife=s right to share in whatever value of the stock plans accrued during the marriage, during which time she contributed to her husband=s successful career in banking through her services as wife and homemaker. The remainder would be separate property, not subject to equitable distribution, which the husband has the right to enjoy, as separate property traceable to the years outside of the marriage, the fruit of his sole labors.
XXIII Early Retirement Payments I. Severance In Olivo v Olivo, 82 NY2d 202, the Court of Appeals held that severance payments attributable to the period of the marriage are marital property where the right to receive those payments exist either during the marriage or prior to the commencement of the action, or where they constitute compensation for past services. The Court held that the wife was entitled to share pro rata in the husband's early retirement pension acceleration, even though it had been awarded to him after their divorce, because the husband's right to the pension had largely been earned during the marriage. However, the wife was not entitled to share, however, in Social Security bridge payments and a separation payment awarded to the husband contemporaneously with the accelerated pension, because the husband's right to these payments had arisen entirely after the marriage.
The Court of Appeals observed that in applying that statutory scheme, it has held that pension rights earned during a marriage, prior to a separation agreement or matrimonial action, are properly considered marital property subject to equitable distribution (see, Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15, supra). The decision in Majauskas was premised on the idea that a pension is a form of deferred compensation. Even though workers are unable to gain access to the money until retirement, their right to it accrues incrementally during the years of employment. Thus, that portion of a pension based on years of employment during the marriage is marital property. Using this rationale, it had concluded that certain disability payments were subject to equitable distribution when those payments were calculated according to the number of years of employment and were therefore partially earned during the years the recipient was both employed and married (see, Dolan v. Dolan, 78 N.Y.2d 463, 577 N.Y.S.2d 195, 583 N.E.2d 908). It followed from Majauskas and Dolan that if the rights to the three forms of compensation at issue here were earned, in part, during the marital years, the former spouses should share in the compensation pro rata.
The Court held that the test of Dolan and Majauskas is whether the compensation in question is a form of deferred compensation. A length of service requirement may be some evidence of that, but it is not conclusive. The Court of Appeals held that the Appellate Division was correct in holding that the Social Security Bridge Payment and separation paymentCthe second and third parts of the Kodak packageCwere not forms of deferred compensation and thus not marital property. Respondents had no right to these payments during the time they were married. Had they retired the day before the Kodak plan became effective, they would have been entitled to neither payment. Rather than being compensation deferred until some point after the divorce like the traditional pension in Majauskas, the two payments here were compensation created after the divorce. In that way, these portions of the Kodak package were distinguishable from the pension in Majauskas and the disability payment in Dolan.
Thus, the law is settled that severance payments (attributable to the period of the marriage) are marital property where the right to receive those payments exist either during the marriage or prior to the commencement of the action, or where they constitute compensation for past services. See Dunnan v. Dunnan, 261 A.D.2d 195, 690 N.Y.S.2d 46 (1st Dep=t 1999); Nielsen v. Nielsen, 256 A.D.2d 1173, 682 N.Y.S.2d 502 (4th Dep=t 1998) (payment constituted compensation for past services rather than an incentive for future)
In Curley v. Curley, 4 N.Y.S.3d 676, 678B79, 125 A.D.3d 1227, 1229B30 (N.Y.A.D. 3 Dept.,2015) the husband argued that Supreme Court erred by not awarding him a distributive share of the wife's retirement incentive benefits. The record revealed that, in exchange for agreeing to retire from her position as a university administrator and surrender her accrued vacation and sick leave, the wife was paid a lump sum of money shortly after commencement of the divorce action. The husband asserted that the wife's eligibility for the retirement incentive benefits was derived from her employment during the marriage and, as such, the benefits should have been subject to equitable distribution. The Appellate Division observed that benefits received in consideration for an early retirement will constitute marital property if the right to the payments arose during the marriage, or where the incentive is intended as compensation for past services rendered by the employee‑spouse during the marriage. Here, the wife's inclusion in the retirement incentive program was based, at least in part, on the number of years of service to her employer. Additionally, the wife testified that she accepted inclusion in the early retirement program in April 2009. Thus, it found that the wife's entitlement to the early retirement benefits vested during the marriage. The mere fact that the incentive benefits were not paid until following the commencement of the proceedings did not alter their status as marital property subject to equitable distribution.
The Court of Appeals has previously determined that pension benefits or vested rights to those benefits, except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property. Majauskas v. Majauskas, 61 N.Y.2d 481, 490, 474 N.Y.S.2d 699, 463 N.E.2d 15).
Dolan v. Dolan, 583 N.E.2d 908, 909, 577 N.Y.S.2d 195, 196, 78 N.Y.2d 463, 466 (N.Y.,1991)The mere fact that the incentive benefits were not paid until following the commencement of the proceedings did not alter their status as marital property subject to equitable distribution
In Olivio v Olivio, 82 N.Y.2d 202, 209–10 (1993) the Court of Appeals observed that when Mr. Olivo accepted an early retirement package that enhanced his pension, it enhanced Mrs. Olivo's share in that pension as well. It found that the enhancement was a modification of an asset not the creation of a new one. It held that in keeping with its holdings in Majauskas and Dolan, her pro rata share should have been calculated against the pension actually obtained by Mr. Olivo. II. Deferred Compensation
In Klauer v. Abeliovich, 53 N.Y.S.3d 37, 42B43, 149 A.D.3d 617, 621B22 ( 1 Dept.,2017) the Appellate Division held that the court correctly determined that plaintiff's bonus, although paid after this action was commenced, was compensation for her past performance, not tied to future performance (citing DeJesus v. DeJesus, 90 N.Y.2d 643, 652, 665 N.Y.S.2d 36, 687 N.E.2d 1319  ). As a general rule, bonuses paid as compensation for past services are marital property and subject to equitable distribution (see Ropiecki v. Ropiecki, 94 A.D.3d 734, 736, 941 N.Y.S.2d 650 [2d Dept.2012] ).. The court also prorated the bonus to reflect that although it was paid for the 2011 calendar year, the parties separated in May 2011, meaning only 40% of the total amount could be considered marital (see Kriftcher v. Kriftcher, 59 A.D.3d 392, 392B393, 874 N.Y.S.2d 153 [2d Dept.2009] ).
XXV Contributions The very essence of the equitable distribution law, is to recognize the direct and indirect contributions of each spouse, whether they are economic or noneconomic (see e.g. Hartog, 85 N.Y.2d at 45, 623 N.Y.S.2d 537, 647 N.E.2d 749). Klauer v. Abeliovich, 53 N.Y.S.3d 37, 44, 149 A.D.3d 617, 623B24 (N.Y.A.D. 1 Dept.,2017)
XXVI Ordinary witness testimony of Value of Properties A witness must provide a basis of knowledge for his statement of value before it can be accepted as legally sufficient evidence of such value. Generally, ordinary witnesses, as opposed to expert witnesses, may only testify as to facts and not to opinions or conclusions which they have formed from facts, whether known to themselves, or derived from the testimony of others. Morehouse v. Mathews, 2 N.Y. 514, 515B16, 1849 WL 5353 (1849) The Court of Appeals has held that: AAs a rule, witnesses must state facts, and not draw conclusions, or give opinions. It is the duty of the jury, or court, to draw conclusions from the evidence, and form opinions upon the facts proved. The cases in which opinions of witnesses are allowable, constitute exceptions to the general rule, and the exceptions are not to be extended or enlarged, so as to include new cases, except as a necessity to prevent a failure of justice, and when better evidence cannot be had... On questions of value, a witness must often be permitted to testify to an opinion as to value, but the witness must be shown competent to speak upon the subject. He must have dealt in, or have some knowledge of the article concerning which he speaks. Persons should be conversant with the particular article, and of its value in the market, as a farmer or dealer, or a person conversant with the article, as to the value of lands, cattle, produce, etc. These stand upon the general ground of peculiar skill and judgment in the matters about which opinions are sought. Terpenning v Corn Exch. Ins. Co., 43 N.Y. 279, 281B82 (N.Y. 1871) (citing Nelson, Ch. J., Lincoln v. Schenectady and Saratoga R. R. Co. (23 W. R., 433); Bull v. Flagler (23 Wend., 354); Norman v. Wells (17 Wend., 136); Lamoure v. Caryl (4 Denio, 370). Nelson Ch. J., Lincoln v. Schenectady and Saratoga R. R. Co. (23 W. R., 433); Bull v. Flagler (23 Wend., 354); Norman v. Wells (17 Wend., 136); Lamoure v. Caryl (4 Denio, 370). Opinion evidence is admissible as to the value of real and personal property and personal services by anyone with a reasonable basis for the opinion. However, a witness must provide a basis of knowledge for his statement of value before it can be accepted as legally sufficient evidence of such value. People v Lopez, 79 N.Y.2d 402, 404B05 (N.Y. 1992)
` Domestic Relations Law ' 236[B]  [d]  requires the court in making equitable distribution to consider “Athe wasteful dissipation of assets by either spouse. ”@
The general rule is that where there is a wasteful dissipation of assets or secretion of assets, the court must consider that fact in making its equitable distribution and the amount dissipated must be charged against the party's equitable share. Strang v. Strang, 222 A.D.2d 975, 635 N.Y.S.2d 786 (3d Dep't 1995)
In Buchanan v. Buchanan, 132 A.D.3d 1182, 19 N.Y.S.3d 600 (3d Dep't 2015) the Appellate Division affirmed an order of the Supreme Court which held that an annuity cashed in by the husband was marital property, and that the wife was entitled to approximately half of what that annuity would have been worth had the husband waited until the relevant mandated retirement age to collect the annuity. It noted that the court credited the wife's testimony that she did not consent to the early receipt of funds in exchange for giving up the annuity, which triggered penalties for such a transaction that reduced the amount actually received.
In Levitt v. Levitt, 97 A.D.3d 543, 948 N.Y.S.2d 108 (2d Dep't 2012) the Appellate Division found that the Supreme Court should have charged the defendant with marital waste in the sum of $73,500, representing the amount of additional income tax the plaintiff was required to pay based upon the defendant's failure, as of the time of trial, to agree to file joint income tax returns for 2009 (citing cf. Teich v. Teich, 240 A.D.2d 258, 658 N.Y.S.2d 599 (1st Dep't 1997)
In E.R.S. v. B.C.S., 51 Misc. 3d 1210(A), 36 N.Y.S.3d 407 (Sup 2016) (Table) Plaintiff alleged that he was forced to file a married, filing separately tax return because defendant refused to file a joint return, and a result, he incurred a tax liability of $10,000 instead of a tax refund of $2,000. The parties had filed jointly for 15 years. He claimed defendant owed him $6,000 due to her refusal to file jointly with him. Supreme Court found, inter alia, that Defendant failed to defeat plaintiff's claim that her refusal to file a joint income tax return with her was anything but wasteful. In accordance with ."Levitt v. Levitt, 97 A.D.3d 543, 948 N.Y.S.2d 108 (2d Dep't 2012), the Court gave defendant the opportunity to file an amended return with plaintiff on or before April 15, 2016 for the tax year 2014 and directed that the parties shall share equally the return, giving plaintiff a credit for the sums he paid in excess of the approximately $2,000 expected return. It directed that if defendant failed to file an amended joint 2014 tax return with plaintiff, she shall pay plaintiff the sum of $6,000. (50%% of the amount of the refund they would have received plus 50%% of the tax liability plaintiff incurred by filing separately.)
XXVIII Violation of Automatic Orders.. Domestic Relations Law, Section 236 [B][b] provides that ,@Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court; except that any party who is already in pay status may continue to receive such payments thereunder.
In Spencer v. Spencer, 159 A.D.3d 174, 176 ( 2 Dept., 2018) the Appellate Division held that the provisions of Domestic Relations Law ' 236(B)(2)(b) and Uniform Rules for Trial Courts (22 NYCRR) ' 202.16Ba, in tandem ( the automatic orders), constitute unequivocal mandates of the court for the purposes of holding a party in civil contempt pursuant to Judiciary Law ' 753. However, civil contempt is not an available remedy for violation of the automatic orders when civil contempt is sought after entry of a judgment of divorce. In that case after the judgment of divorce had been entered, the plaintiff learned that, while the trial was pending, unbeknownst to her, the defendant sold a warehouse in Brooklyn, which was a marital asset (hereinafter the Property), without her consent and without the consent of the Supreme Court during the pendency of the action.
Although the judgment of divorce had already been entered, as a result of the plaintiff's discovery of the defendant's earlier sale of the Property, on July 29, 2016, the plaintiff filed an order to show cause seeking, inter alia, pursuant to Judiciary Law ' 753, a finding of civil contempt against the defendant. The Supreme Court then held a hearing on the plaintiff's order to show cause, during which the defendant admitted that he sold the Property for $1.6 million during the pendency of the divorce trial. The defendant asserted that, after paying the mortgage and other encumbrances on the Property, he received proceeds from the sale in the amount of $300,000, which he spent paying debts that he owed. Supreme Court, inter alia, granted that branch of the plaintiff's motion which was to hold the defendant in civil contempt, finding the defendant's sale of the Property in violation of the automatic orders and his expenditure of the proceeds for his own benefit defeated, impaired, impeded, or prejudiced the rights of the plaintiff. The court directed that, unless the defendant purged the contempt by paying $150,000 to the plaintiff on or before December 16, 2016, the defendant would be incarcerated every weekend for a period of six months. The Appellate Division reversed the contempt finding because it was made after entry of judgment. In reversing it pointed out that the unavailability of civil contempt as a remedy to enforce the terms of the automatic orders after the entry of the judgment of divorce did not render this plaintiff without available remedies. AFor example, vacatur of the judgment of divorce based on newly discovered evidence, a civil contempt motion for a violation of the judgment of divorce, a proceeding to enforce the terms of the judgment of divorce or to obtain an order directing the payment of 50% of the value of the Property which was awarded to the plaintiff in the judgment of divorce, or amendment of the judgment of divorce are all remedies that the plaintiff could have sought.@
The essential elements of gifts inter vivos are (1) intent to make a gift; (2) delivery of the thing sought to be given, either actual or symbolic; and (3) the acceptance of the gift by the donee. Beaver v. Beaver, 117 N.Y. 421, 428, 22 N.E. 940, 941, 6 L.R.A. 403. There must be (1) a showing that the donor intended to make an irrevocable present transfer of ownership. (2) There must be either physical, constructive or symbolic delivery to the donee sufficient to divest the donor of dominion and control over the property, and (3) acceptance by the donee. Gruen v. Gruen, 68 N.Y.2d 48, 53, 56B57, 505 N.Y.S.2d 849, 496 N.E.2d 869 ; Matter of Szabo, 10 N.Y.2d 94, 98, 217 N.Y.S.2d 593, 176 N.E.2d 395; Matter of Kelly, 285 N.Y. 139, 150, 33 N.E.2d 62 [dissenting in part opn]; Matter of Van Alstyne, 207 N.Y. 298, 306, 100 N.E. 802; Beaver v. Beaver, 117 N.Y. 421, 428, 22 N.E. 940.
The burden of proving that a gift was made must be established by the party asserting it with clear and convincing evidence. Matter of Carroll, 100 A.D.2d 337, 338, 474 N.Y.S.2d 340  ).In re Baum, 890 N.Y.S.2d 457, 458, 66 A.D.3d 412, 413 ( 1 Dept.,2009); Gruen v. Gruen, 496 N.E.2d 869, 872, 505 N.Y.S.2d 849, 852, 68 N.Y.2d 48, 53 (N.Y.,1986).However, it need not be proved beyond all suspicion. Lewis v. Merritt, 113 N.Y. 386, 390, 21 N.E. 141, 142.
The clear and convincing evidence necessary to prove that a gift has been made has been held not to mean more than a preponderance but only that the evidence offered will be more carefully scrutinized. Although the burden of proving that a gift was made must be established by the one asserting it by clear and convincing evidence, in as much as no constitutional or liberty interest is involved Athis does not mean that the donee must prove the gift by more than a fair preponderance of the evidence, but that the evidence will be more carefully scrutinized@ . Matter of Carroll, 100 A.D.2d 337, 474 N.Y.S.2d 340 (2d Dep't 1984); 26 N.Y.2d 792, 309 N.Y.S.2d 219, 257 N.E.2d 663, affg. on opn. at 29 A.D.2d 450, 456, 289 N.Y.S.2d 314; see also Hutt v. Lumbermens Mutual Cas. Co., 95 A.D.2d 255, 258, 466 N.Y.S.2d 28; Mortellaro v. Mortellaro, 91 A.D.2d 862, 863, 458 N.Y.S.2d 390.
Commentators have observed that the delivery requirement in the law of gifts serves three important functions. First, it makes the significance of the act vivid and concrete to the donor. Second, the act of manual transfer is unequivocal to the actual witnesses to the transaction. Finally, the fact of delivery gives the donee prima facie evidence of the alleged gift. Matter of Carroll, 474 N.Y.S.2d 340, 342, 100 A.D.2d 337, 339 (2 Dept.,1984).
Acceptance by the donee is essential to the validity of an inter vivos gift, but when a gift is of value to the donee, the law will presume an acceptance on his part. Matter of Kelsey, 26 N.Y.2d 792, 309 N.Y.S.2d 219, 257 N.E.2d 663, affg. on opn. at 29 A.D.2d 450, 456, 289 N.Y.S.2d 314; Beaver v. Beaver, 117 N.Y. 421, 429, 22 N.E. 940, supra).Gruen v. Gruen, 496 N.E.2d 869, 874B75, 505 N.Y.S.2d 849, 855, 68 N.Y.2d 48, 57 (N.Y.,1986)
Furthermore, it is not necessary to corroborate uncontradicted testimony . In re Corn's Estate, 141 N.Y.S.2d 16 (Sur. Ct. 1955). Gilkinson v. Third Avenue Railroad Company, 47 App.Div. 472, 476, 63 N.Y.S. 792, 794; Crouse v. Judson, 41 Misc. 338, 84 N.Y.S. 755; Ridden v. Thrall, 125 N.Y. 572, 26 N.E. 627, 11 L.R.A. 684.
XXX Domestic Relations Law ' 234
Domestic Relations Law ' 234, which survives the equitable distribution statute (Domestic Relations Law ' 236 Part B) and is incorporated into Domestic Relations Law '236[B][f] , authorizes a Court to determine any question regarding possession or title to property arising between the parties in an action for divorce. (Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809; Novak v. Novak, 135 Misc.2d 909, 516 N.Y.S.2d 878). It provides authority for the court to order the sale and distribution of marital property. In light of the parties ability to agree upon the distribution of this property and the lack of any evidence which can enable the court to exercise its discretion, the court should direct that unless within 30 days of the entry of Judgment the parties can otherwise agree to an equitable division of their separate property set forth above, said property shall be sold as soon as practicable thereafter and the proceeds divided 50% to each party. See, for example, Brownell v. Brownell, 646 N.Y.S.2d 221, 222B23, 168 Misc.2d 1038, 1039B41 (N.Y.Sup.,1996)
A Plaintiff is not entitled to credits for mortgage and maintenance payments made during marriage. See Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 421B22, 909 N.E.2d 62, 65B66 (2009);
In Klauer v. Abeliovich, 53 N.Y.S.3d 37, 42B43, 149 A.D.3d 617, 621B22 (. 1 Dept.,2017) the parties were married in 2008 and the Special Referee rendered his decision in 2015. The Appellate Division held that the Plaintiff was not entitled to a separate property credit for the $350,000 downpayment or the additional sum of $932,000 the parties applied towards the purchase price of their Fifth Avenue coop. It noted that even if any of these funds had once been separately titled accounts or her separate premarital assets they lost that character once she committed them to the purchase of the coop in both their names and thereafter used a significant portion of the sales proceeds to purchase another apartment in both their names. Not only did the parties jointly take title of the Fifth Avenue coop, they committed themselves as an intact unit to its renovation, they lived in it together before Aflipping@ it, and then reinvested the net profits of the coop sale into yet another apartment that became the parties' marital residence. The conveyance of separate funds under these circumstances resulted in the separate assets becoming presumptively marital and partial use of separate funds to acquire a marital asset does not mandate that plaintiff be credited for any separate funds she committed (see Fields, 15 N.Y.3d at 167, 905 N.Y.S.2d 783, 931 N.E.2d 1039). The Court stated that while in some cases a spouse who contributes separate property towards the downpayment of a jointly titled residence may be allowed a separate property credit, the Fifth Avenue coop was not only sold before this action was commenced, plaintiff also failed to rebut the statutory presumption that the separate property was not commingled or committed to the marriage (see Fields, 15 N.Y.3d at 165B166, 905 N.Y.S.2d 783, 931 N.E.2d 1039). There was no basis to credit plaintiff for the downpayment under these circumstances.