Domestic Relations Law §236 [B] is commonly referred to as the Equitable Distribution Law. New York is an "Equitable Distribution State" and upon the dissolution of a marriage, the Court must distribute "Equitably" (but not necessarily equally) all marital property, and determine each spouse's right to his or her separate property. In equitably distributing marital property, the Court is required by the provisions of Domestic Relations Law § 236 [B]  to consider fourteen factors. There must be a determination as to the equitable distribution of marital property and a determination as to the ownership of the separate property of each party.
Domestic Relations Law § 236, Part B (1) (c), gave a new statutory definition to "marital property." Under the former law "marital property" referred solely to jointly owned property, such as a residence owned as tenants by the entirety, or joint bank or savings accounts. Under the statue marital property means “All 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, except as otherwise provided in an agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined.” The definition of marital property applies for purposes of equitable distribution of family assets upon divorce.
The definition of marital property is broad and comprehensive. It does not specify that in order to be "marital property" an item must have exchange value or be salable, assignable or transferable. In O'Brien v O’Brien, the Court of Appeals noted that "marital property” is a term of art and that the equitable distribution law created a new species of "property" that was not anchored in common law property concepts or affected by decisions in other states having a different statutory definition. The Court of Appeals held that an interest in a profession or a professional career potential (a physician's license) is marital property subject to equitable distribution.
Courts have liberally interpreted the term "marital property" to include vested but unmatured pension rights; a law practice; a physician's license; a Ph.D.; a degree and certification as a school administrator; a law license, a board certification in internal medicine; a teaching license; a physician's assistant's State license and certification; breeders’ awards received before trial and future breeders’ awards received after the date of the commencement of the action resulting from horse breeding during the marriage; lottery winnings from tickets bought from earnings; the portion of a pension that represents deferred compensation; a master's degree and teaching certificate; a fellowship in the society of actuaries; a degree and license as a health care administrator; a taxi medallion purchased by the husband prior to the marriage that was paid off during the marriage out of a joint account to which the wife contributed; oil paintings created by the husband, an artist, during the marriage; tax refunds used by the husband to purchase an IRA account in his name and a cooperative apartment occupied by the wife before marriage but converted during the marriage; wedding gifts; an abortion practice; a police pension in payout status; an unvested and unmatured fireman's pension a non-vested pension; that portion of a matured and paying disability pension representing retirement benefits; a farm started by the husband before marriage to which the wife contributed her efforts as a lender, homemaker, and mother; a medical-psychiatrist license; a debt owed by the parties'; a profit-sharing plan; a cooperative apartment that closed after the marriage; a podiatry practice; an increase in a spouse's career as an actress and model; the appreciation of personal injury settlement proceeds, and stock given to a husband's nominee where he has controlled it.
In Fields v Fields the Court of Appeals, in an opinion by Judge Graffeo, concluded that the value of the husband's one-half interest in the parties' residence, a Manhattan townhouse that the husband purchased during the marriage and where the parties had lived for nearly thirty years, was marital property and affirmed the order of the Appellate Division. The decision is in keeping with the fundamental purpose of the Equitable Distribution Law, the recognition of marriage as an economic partnership, in which 'both parties contribute as spouse, parent, wage earner or homemaker.
At the outset, Judge Graffeo set forth the applicable principals of law that applied to this case. She pointed out that Domestic Relations Law §236 defines 'marital property' as 'all 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, and the definition of marital property includes a 'wide range' of tangible and intangible interests. She indicated that “it is telling that the Legislature chose to initially categorize all property, of whatever nature, acquired after parties marry as marital property.” Hence, the Court has stressed that marital property should be 'construed broadly in order to give effect to the ' economic partnership' concept of the marriage relationship'. By contrast, separate property, denoted as an exception to marital property, should be construed 'narrowly'. The structure of section 236, therefore, creates a statutory presumption that 'all property, unless clearly separate, is deemed marital property' and the burden rests with the titled spouse to rebut that presumption. 
The husband argued in the Court of Appeals that his one-half interest in the townhouse was separate property because he owned and managed the building with his mother and because the Wife did not contribute to its purchase or its appreciation in value. The Court of Appeals disagreed and concluded that the value of the husband’s one-half interest in the townhouse was marital property subject to equitable distribution.
Judge Graffeo wrote that here, the husband purchased the townhouse in 1978, approximately eight years into the marriage, and therefore, on the date of acquisition, the presumption of marital property arose. Even where one spouse contributed monies derived from separate property toward the acquisition of the marital residence, this has not precluded its classification as marital property where the other spouse made economic or other contributions to the residence and the marriage; the contributing spouse generally has received a credit for that contribution. Here, the property was purchased eight years into the parties' marriage with the intent that it would be used as the marital residence where the parties would live and raise their son. In fact, that is precisely what occurred, the parties resided in the home with their son and other family members for nearly 30 years. Thus, the statutory presumption that a residence acquired during the marriage is marital property clearly applied in this case.
Once the statutory presumption was triggered, the burden shifted to the husband to rebut that presumption. The Husband relied on the fact that he used monies derived from separate property, the $30,000 down payment, to acquire the townhouse. But the townhouse was not 'acquired in exchange for' the $30,000 down payment (Domestic Relations Law § 236 [B]  [d] ). The husband’s $30,000 separate property contribution covered only a fraction of the purchase price. While the down payment facilitated the acquisition, the use of a 'separate property' down payment does not, in and of itself, establish the property's character as separate property. The remaining $100,000 of the purchase price was paid through two mortgages and, despite the husband’s claim that he made mortgage payments solely from rental proceeds, he failed to substantiate that allegation. The husband testified that he commingled marital assets in the partnership bank account from which mortgage payments were made. Specifically, he acknowledged that he would sometimes deposit his paychecks, which were marital property, into the account. Funds from other sources of marital income were also placed into the account, such as the husband’s earnings from his tax preparation and video businesses and wife's paychecks. The fact that the husband would later transfer funds or give cash to the Wife does not alter the commingled nature of the funds. Finally, both the husband and the Wife paid rent to the partnership using income from their outside endeavors, which was a partial source of the mortgage payments. The Court found that the husband, therefore, failed to establish that the mortgages, which were used to pay the majority of the townhouse's purchase price, were paid using monies derived exclusively from separate property, much less that all of the expenses associated with the property were covered by segregated funds.
Judge Graffeo noted that there is no single template that directs how courts are to distribute a marital asset that was acquired, in part or in whole, with separate property funds. In these situations, courts have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset. In distributing any appreciation in value, courts may consider any of the factors listed in Domestic Relations Law §236 (B) (5) (d) or any other relevant considerations, including the respective contributions of each spouse and the effect of market forces.
In this case, the courts below properly considered the spectrum and quantity of contributions made by each spouse to the management and maintenance of the townhouse and the extent to which market factors enhanced the value of the property. Under these circumstances, the Court declined to disturb the determination below that the husband failed to rebut the statutory presumption that his interest in the townhouse is marital property subject to equitable distribution and that the Wife was entitled to 35 percent of the husband 's interest in that asset. In reaching this conclusion, the Court emphasized that the husband purchased the townhouse eight years into the 35-year marriage and that the family maintained their living arrangement since 1978. It is not for the courts to dictate what type of lifestyle a 'normal' marriage should reflect or how married couples should structure their marital relationships. That the husband and the wife, in this case, maintained separate apartments in the building did not change the character of the property from marital to separate, especially since they both made economic and noneconomic contributions to their marriage and the upbringing of their son. Many married couples sleep in different bedrooms for a variety of reasons and such arrangements do not affect the 'marital property' status of their homes if they divorce. The fact that the husband took title to his one-half interest in the townhouse in his name alone is irrelevant under the statute's express language, nor does the fact that the husband acquired title with his mother interfere with the marital character of his interest in the property. That portions of the townhouse were used as an income-generating business does not transform the building into separate property. The Wife's lack of an initial monetary investment and involvement in the management activities pertaining to the townhouse do not preclude a holding that the husband’s interest in the building is marital property. These were factors properly considered by the trial court in determining the extent of wife's distributive award.
Domestic Relations Law § 236 Part B (1) (c) defines marital property as property acquired by either or both spouses during the marriage and before the commencement of a matrimonial action. The definition of marital property excludes property acquired by a spouse after the commencement of the action.  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. 
Property acquired by a spouse after the commencement of the action becomes become 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. For example, assets that are acquired with funds received from the liquidation of an interest in a partnership, which partnership was acquired during the marriage and prior to the commencement of the action constituted marital property as they were acquired through the sale or exchange of marital property.
In O'Brien v O'Brien, the Court of Appeals mandated that the Equitable Distribution Law be given a liberal interpretation, and held that a professional degree or license was "marital property" subject to equitable distribution. It affirmed the trial court's holding that Dr. Michael O'Brien's medical degree and license, earned during the course of the marriage, had a present value of $472,000, and awarded his wife Loretta 20% of that amount. That figure was computed by comparing the average income of a college graduate and a general surgeon (Dr. O'Brien's then residency training) between 1985, when Dr. O'Brien anticipated the completion of his residency, until his 65th birthday. After considering Federal income taxes, an inflation rate of 10 percent and a real interest rate of 3 percent, the court capitalized the difference in average earnings and reduced the amount to present value.
The Court of Appeals expanded the O'Brien rule in McSparron v McSparron where the court concluded that even after a license has been exploited by the licensee to establish and maintain a career, it does not "merge" with the career or ever lose its character as a separate, distributable asset. The Court cautioned that care must be taken to ensure that the monetary value assigned to the license does not overlap with the value assigned to other marital assets that are derived from the license. Most notable among these is the licensed spouse's professional practice. Courts must also be meticulous in guarding against duplication in the form of maintenance awards that are premised on earnings derived from professional licenses. Recognizing that the question of valuation would probably have to be tried over, the Court of Appeals held that in selecting the appropriate valuation date the trial court may consider the events which may have affected the value of Jim’s license, including his job loss, which was caused in part by what the Appellate Division characterized as Hedy’s 'acrimonious and vindictive conduct'. The Court of Appeals reported that in selecting a valuation date some make a distinction between "active" assets, whose value depends on the labor of a spouse, and "passive assets,” whose value depends only on market conditions. These courts concluded that "active" assets should be valued only as of the date of the commencement of the action, while the valuation date for "passive" assets may be determined more flexibly. The Court of Appeals rejected the "active-passive" distinction as a rule of law, holding that they are to be regarded only as helpful guideposts. 
In O'Brien v O'Brien the Court of Appeals charted the future course of the Equitable Distribution Law. In doing so it mandated that the statute be given a liberal interpretation in order to achieve its objective of an equitable division of family assets upon divorce. In O'Brien the husband's medical degree or license was classified as "marital property" because at the time of divorce he was still in residency and had no medical practice. The timing of the commencement of the divorce action in O'Brien precluded any distributive award based upon a medical practice, which had not yet been established. Dr. O'Brien had acquired a medical degree and license during his 1-year marriage, but he had no medical practice. The court did not award Mrs. O'Brien any interest in the husband's future medical practice nor did it mortgage his professional future.
The Court of Appeals expanded the O'Brien rule when it decided McSparron v McSparron.  In a resounding reaffirmation of O'Brien the court concluded that even after a license has been exploited by the licensee to establish and maintain a career, it does not "merge" with the career or ever lose its character as a separate, distributable asset.
The Court of Appeals revisited, reaffirmed and refined its McSparron holding in Grunfeld v. Grunfeld. The Court of Appeals held that to comply with McSparron, Supreme Court had to reduce either the income available to make maintenance payments or the marital assets available for distribution, or some combination of the two. Once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout. It stated that where license income is considered in setting maintenance, a court can avoid double counting by reducing the distributive award based on that same income.
Domestic Relations Law §236[B]  [d]  was amended, thirty years after the O’Brien decision to eliminate enhanced earning capacity as a marital asset. The amendment added the following paragraph to factor 7 for property distribution: The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse.
The amendment was intended to eliminate enhanced earning capacity as a marital asset, thus, legislatively overruling McSparron and Grunfeld too. However, vestiges of O’Brien  remain. In arriving at an equitable division of marital property, the court may consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse.  This requires the spouse requesting the court to consider his or her contributions to the development of the enhanced earning capacity of the other spouse to establish: (1) that the other spouse has an enhanced earning capacity attributable to a license, degree, celebrity goodwill, or career enhancement and (2) the value of such enhanced earning capacity, before the court can consider his or her contributions to the development of such enhanced earning capacity.
In Price v Price  the Court of Appeals attempted to construe Domestic Relations Law § 236(B)(1)(d)(3) which excludes from the definition of "marital property" . . . "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." The Court of Appeals held that under the Equitable Distribution Law an increase in the value of the separate property of one spouse, occurring during the marriage and before the commencement of matrimonial proceedings, which is due in part to the indirect contributions or efforts of the other spouse as homemaker and parent, should be considered marital property. It cautioned, that whether assistance of a nontitled spouse, when indirect, can be said to have contributed "in part" to the appreciation of an asset depends primarily upon the nature of the asset and whether its appreciation was due in some measure to the time and efforts of the titled spouse. If such efforts . . . were aided and the time devoted to the enterprise made possible, at least in part, by the indirect contributions of the nontitled spouse, the appreciation should, to the extent it was produced by the efforts of the titled spouse, be considered a product of the marital partnership and hence marital property. * * * As a general rule, however, where the appreciation is not due, in any part, to the efforts of the titled spouse but to the efforts of others or to unrelated factors including inflation or other market forces, as in the case of a mutual fund, an investment in unimproved land, or in a work of art, the appreciation remains separate property, and the nontitled spouse has no claim to a share of the appreciation."
The Court of Appeals held that the nontitled spouse must demonstrate that (1) the property appreciated in value during the marriage due, in part, to efforts or contributions of the titled spouse in time, money or energy. (2) he or she contributed, in part, to the appreciation as a homemaker or parent by giving the titled spouse the time to devote to the enterprise. Where an asset appreciates passively during the marriage due solely to the efforts of others or market forces, the nontitled spouse is not entitled to share in the appreciation, since it was not the efforts of the titled spouse which contributed to the increase in value of the asset. 
In Hartog v Hartog  the Court of Appeals held that requiring a nontitled spouse to show a substantial, almost quantifiable, connection between the titled spouse's efforts and the appreciated value of the asset would be contrary to the letter and spirit of Domestic Relations Law § 236[B][c], [B][d], [B][c], [B][d]. The Court concluded that where an asset, like an ongoing business, is, by its very nature, nonpassive and sufficient facts exist from which the fact finder 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 fact finder must then determine what percentage of the total appreciation constitutes marital property subject to equitable distribution . . .” 
The first type of separate property is listed in Domestic Relations Law § 236 [B] (1) (d) (1), which reads: "(1) Property acquired before marriage or property acquired by bequest, devise or descent, or gift from a party other than the spouse."
This provision ordinarily covers the majority of assets classified as separate property and exempted from equitable distribution. The common thread running through this subdivision (1) is that the items described were not produced by a functioning marital partnership. Property which was separate property before marriage was not produced during the marital partnership. The same holds true as to inheritances and gifts from a party other than a spouse. Gifts between spouses are not included in subdivision (1) and are "marital property. This exemption from equitable distribution of gifts and inheritances from other parties applies when they are individual gifts but not when the gift or inheritance is to both spouses.
In Capiello v Capiello  the trial judge awarded Lorraine Cappiello $38,780 as her distributive share of the marital property. The Appellate Division reduced the award because equitable distribution is "not designed either to result in a penalty or a windfall,” and considerations of fairness and equity did not justify a fifty-fifty division of the marital property. It also held that the wife was not entitled to a distributive share of the value of Anthony’s new company which was a spin-off from his equity interest in his old firm, or to a distributive share of the cooperative apartment which he bought with his own funds after leaving the marital home. These were separate property interests, not subject to distribution. The Court of Appeals affirmed and held that although property acquired during the marriage and before the commencement of a matrimonial action is marital property and that separate property acquired in exchange for, or the increase in value of separate property remained "separate.”
Domestic Relations Law § 236 [B] Subdivision (1) (d) exempts from equitable distribution and designates as separate property "compensation for personal injuries." In West v West,  the matter was sent back to the trial Court for a determination of the extent to which the husband's disability pension was marital property because the portion attributable to compensation for his personal injuries is separate property. The Appellate Division explained that the difference between a disability pension and a retirement pension is in the extent to which the disability pension is compensation for personal injuries and is separate property and not subject to equitable distribution. "However,” "where a disability pension may in part, represent deferred compensation, it is indistinguishable from a retirement pension and is, to some extent, subject to equitable distribution." 
The last specific example of "separate property" is found in Domestic Relations Law § 236[B] (1) (d) (4), which refers to "property described as separate property by written agreement of the parties.” In the First and Second Departments, a “written agreement” includes stipulations made on the record in open court pursuant to CPLR 2104. 
The term “distributive 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. 
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)l provide for the disposition thereof in the final judgment. 
The Court must distribute marital property "equitably between the parties, considering the circumstances of the case and of the respective parties." 
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. 
In its discretion, the court may also make a distributive award to supplement, facilitate or effectuate a distribution of marital property.
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. 
All property acquired by either or both spouses during the marriage, unless clearly separate, is presumed to be marital property, regardless of in whose name title is taken.  The term "marital property" is to be broadly interpreted. The term "separate property" is to be narrowly interpreted. The reason for this is to give effect to the economic partnership concept of the marriage relationship. 
Where, “the property at issue is held jointly, an equal disposition of that property should be presumptively in order, with the burden on the party seeking a greater share to establish entitlement”. It found that the husband did not overcome the presumption that the jointly titled property, i.e., an Investacorp account, should be divided equally between the parties. 
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. 
In D'Amato v D'Amato  where the major assets constituting marital property were the marital residence and defendant's pension the Appellate Division said: “A determination must be made at to the net value of each asset before determining the distribution thereof. In this regard, Special Term must make explicit findings of fact as to the reasons for the distribution of each asset constituting marital property.”
In Capasso v Capasso  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 "consideration 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. Thus, the court may not make a distribution of marital property without first determining the value of each marital asset. 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. Moreover, the amount of the property distribution is a factor to be considered before making a maintenance and counsel fee award. 
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. For example, 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. Where the marital residence is titled in the name of one spouse alone the court may not order its sale and distribution of the proceeds absent a valuation.  Where the marital residence or other marital property is titled in the name of both spouses it appears the court may direct its sale and an equal distribution of the proceeds as a distributive award, even though it has not been valued, because if it declines to make an equitable distribution or a distributive award of the property, the parties will hold it as tenants in common after the dissolution of their marriage, and, as a general rule, each party would be entitled to fifty percent of its value upon a subsequent sale or partition. In such case, the amount of the distribution to each party will be equal.
Valuation may be unnecessary only in the rare cases where cash or liquid assets are equitably distributed “in kind”, and in pension cases where there is an equitable distribution in accordance with the rule enunciated in Majauskas v Majauskas, rather than a lump sum distribution.
We have found only a few reported cases where valuation was not established before the court distributed the marital property in kind or without valuing it. None of these cases indicate the court’s reasoning for distributing the asset without a valuation, whether the issue of the manner of distribution was even raised, or whether anyone objected to the manner of distribution.
In Blaise v. Blaise, the Appellate Division said: “The essentially equal distribution of marital property by in-kind distribution rather than by liquidation was well within Supreme Court's discretion and supported by the record." However, it did not discuss the facts of the case or what was distributed in kind.
In Van Housen v. Van Housen, the Appellate Division held that although no expert testimony was presented as to the value of the parties' marital assets, which consisted of the marital residence, New York Telephone Company stock, and defendant's vested pension), Special Term's award of one-half of the value of each asset to each party effectuated the purpose and intent of equitable distribution. The pension was distributed in accordance with the formula used in Majauskas v. Majauskas, the wife was awarded exclusive occupancy of the marital residence, and the stock was distributed in kind.
In Spathis v. Spathis, the Appellate Division found that Plaintiff failed to provide the court-appointed forensic expert with sufficient information to value his stock options at the time of the marriage or the present value of the shares he purchased, and thus plaintiff could not be credited in the amount of the value as of the date of the marriage of his right to acquire the shares of stock. Nor could the value of the shares be distributed since the same was unknown. It held that in such circumstances, it was necessary and appropriate to resolve the issue by ordering an in-kind distribution of the stock shares, and it modified the judgment to direct the husband to transfer half of the shares of stock to the wife.
Despite, the rare cases set forth above there is a requirement that marital assets, other than a pension, must be valued, and the failure to value those assets will constitute a waiver of the right to an equitable distribution and a distributive award of those assets. The Appellate Division has held that in a matrimonial action, where there is an absence of proof regarding the value of property or reasons for treating property as marital property, the Court may refuse to consider any equitable distribution of those assets.
There are separate rules for the equitable distribution, or a distributive award of a vested or nonvested pension, which is valued as of the date of the commencement of the action. Valuation is not required where a spouse does not seek a present lump sum payment in lieu of an equitable distribution. If a spouse proves its value as of the date of the commencement of the action the court can make an immediate lump sum distributive award in lieu of equitable distribution. If a spouse cannot prove its value the matrimonial court may: (1) order distribution to one spouse of an equitable portion of that part of the present value of the other spouse's pension rights earned during marriage; or (2) may provide that upon maturity of the pension rights the recipient pay a portion of each payment received to his or her former spouse, determined by use of the Majauskas formula. In Majauskas, the Appellate Division formula, which was affirmed by the Court of Appeals, directed the husband, upon his retirement, to pay to the wife one-half of a percentage of the amount of each pension benefit payable to him, less taxes, that percentage to be derived by dividing the number of months the parties had been married before the commencement of this action by the total number of months of credits the husband will have earned toward his pension as of the date of retirement.
The choice as to whether marital property shall be distributed or a distributive award shall be made in lieu of or to supplement, facilitate or effectuate a distribution of marital property are matters committed by Domestic Relations Law §236(B)(5) to the discretion of the trial court in the first instance. 
It has been held that in the proper exercise of discretion courts should avoid a method of marital property distribution that permits one spouse immediate realization of the equity in assets awarded and relegates the other spouse to a relatively long and uncertain wait for the same enjoyment. 
Although "equitable distribution" means that the court will award a spouse an equitable share of specific marital property, both liquid and nonliquid (i.e., physically distribute the marital property), very few cases have actually distributed a business equally or distributed minority ownership interests in a business. Those cases are discussed in this section.
There does not appear to be any statutory or case authority for the court to order that assets be sold as the proceeds distributed as a distributive award, or that marital property titled in one spouse’s name only, be distributed as an equitable distribution. They only cases which have ordered an in-kind equitable distribution without valuation, all involve liquid assets such as stocks and bonds, or unusual circumstances making valuation unnecessary or unfeasible.
In Hinden v Hinden,  the husband was the owner of 1900 shares of preferred voting 8 percent noncumulative stock (85 percent of the total) in the business having a liquidation value of $1,039,000, and no common stock. The court found that this stock was not "marketable" and it declined to place a value on it in excess of its redemption value. The wife was awarded, as part of her equitable distribution, 50 percent of the husband's stock. However, it directed that control of the corporation was to remain with the husband.
In Iacobucci v Iacobucci, the wife was directed to transfer to the husband one-half of her 26 shares of stock in the family insurance business. The Appellate Davison found that any attempted valuation of the 26 shares owned by the wife would have involved undue speculation and conjuncture. The parties' son was the major shareholder of the business, and the stock had no value to an outside party. No evidence of its worth was produced. In such circumstances, the Appellate Division held that the equal division was proper.
In Elmaleh v Elmaleh  the Appellate Division held that Supreme Court properly determined that the wife was entitled to 50 percent of certain partnership interests acquired by the husband during the marriage. Since the values of the partnership interests could not be established at the trial, it held that the trial court properly exercised its discretion in directing the husband to transfer a one-half share thereof to the wife.
In Repka v. Repka,  the major marital assets of the parties for purposes of equitable distribution included “the parties' businesses.” The husband requested a direction for the sale of the businesses and an equal division of the net proceeds thereof, with due consideration of the tax consequences. The judgment appealed from directed, inter alia, that “the businesses of the parties shall be sold and the proceeds of sale shall be divided equally between the parties after payment of all liabilities, including taxes”. The Appellate Division affirmed the judgment. It observed that the wife did not oppose the sale of the businesses, but contended that any tax consequences of such a sale should be borne solely by the husband. The Appellate Division held that awarding the family businesses to the husband, against his wishes, and awarding the wife a distributive award in lieu of her interest in the businesses, without consideration of the tax consequences, would be inequitable. Moreover, a sale of the businesses, as directed by the court, would resolve any issue of their value, including the tax consequences, with certainty. Although there was much testimony by the parties' experts as to the tax consequences, the court noted that “(n) either party adequately informed the court as to the basis of the property”. Thus, the court's direction that the businesses “be sold and that the proceeds of the sale shall be divided equally between the parties after the payment of all liabilities”, was justified.
These unusual decisions do not create any exception to the rule that the court may not make an equitable (physical) distribution of marital property, or direct a payment as a distributive award, in lieu thereof, without first determining the value of each marital asset 
In Hinden v Hinden, the court valued the husband's stock before making the equitable distribution. In Iacobucci v Iacobucci,  the court found that the stock had no value to an outside party, before making the equitable distribution. In Elmaleh v Elmaleh, the court did not cite any authority for awarding half of the husband's partnership interests to the wife. The decision in Repka v. Repka  does not indicate whether the businesses were titled in the husband's name or in the joint names of the parties, and it is significant that the wife did not oppose the husband's request. In each of these cases, there were unusual circumstances making valuation unnecessary or unfeasible.
Thus, It appears that under current case law unless the non-titled spouse establishes the value of a business owned by the other spouse, the court cannot direct its equitable distribution, absent unusual circumstances making valuation unnecessary.
A Spouse who claims that separate property of the other spouse has appreciated during the marriage and is entitled to a share of the appreciation has the burden of proof of establishing the amount of the appreciation of the separate property.  If that spouse fails to meet the burden of proof in establishing the value of the property he or she is not entitled to a distributive award in lieu of a share of it.
The spouse who claims that the post-commencement increase in value of the separate property was 'active' and, therefore, separate property, must show that the increase was 'due solely' to his or her efforts. 
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.
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 aided or facilitated" by the non-titled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution.  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..
The value of homemaker services is not a subject which requires expert testimony in a matrimonial action.
It was stated by Justice O’Conner, in his opinion in Conner v Conner,  that that equitable distribution encompasses a partnership, no matter what the proportionate share of capital advances and personal services, and that the wife's marital contributions as a homemaker are presumed equal in value to the husband's contribution as an income earner. The other four judges on the Appellate Division panel concurred in the result only, and to our knowledge, the case has never been cited for that proposition by any appellate court.
Under our Equitable Distribution Law, during the marriage, and absent any divorce action, each spouse retains sole interest in the property to which he or she has title and, with few exceptions,  can dispose of it as he or she desires.
Between a husband and wife, "separate property" usually remains separate  with its rights of management, control, and freedom of disposition. The Domestic Relations Law provides that "separate property shall remain such," and only “marital property” is subject to equitable distribution.
Property which was separate property before marriage, or received by inheritance or gift from others during marriage, compensation for personal injury, and property "acquired in exchange for" what is separate property  ordinarily retains that identity. However, the burden of establishing that property is “separate" rests on the spouse who claims that it is. 
“Separate property” becomes “marital property” for equitable distribution purposes if it falls within the statutory definition of marital property.
Domestic Relations Law § 236, Part B (1) (c) provides that marital property means “All 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, except as otherwise provided in an agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined.”
The definition of marital property is broad and comprehensive. It does not specify that in order to be "marital property" an item must have exchange value or be salable, assignable or transferable. 
The Domestic Relations Law also provides, inter alia, that "property acquired in exchange for or the increase in value of separate property is separate property, except to the extent the appreciation is attributable to the contributions or efforts of the other spouse.
Transferring separate property into the joint names of the parties, or commingling separate property with marital property will transmute it into marital property unless proven otherwise.  The presumption that separate funds are transmuted into marital property when commingled may be rebutted by establishing that the account in which the funds were deposited was created only as a matter of convenience.
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. 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, a commingling of separate with marital property may be said to convert separate property into marital property. The presumption is rebuttable. 
A spouse’s conveyance of inherited property, which is separate property, to herself and her husband as tenants by the entirety creates a presumption that the property is marital property. In order to rebut this presumption, a party is required to come forward with clear and convincing proof that he did not intend his spouse to have an ownership interest in the property but merely placed her name on the deed for the sole purpose of convenience. There is a presumption that assets which are combined or mix in with property that was acquired during the marriage are marital property. The spouse seeking to rebut or disprove that presumption must adequately trace back to the source of the funds or asset he or she is claiming is separate property. A court is not bound by one's own account of his finances, and 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. 
Separate property can be transmuted into marital property where the actions of the titled spouse demonstrate his intent to transform the character of the property from separate to marital. The general rule is that a spouse is entitled to a credit for the value his or her separate property contribution to marital property. However, the granting of such a credit has been held by the Third Department to be a matter of discretion, and a party is not always entitled to a credit for the amount of property contributed. The granting of such a credit is a matter of discretion and not strictly mandated since the property is no longer separate, but is part of the total marital property. The court may not transmute that contribution into a percentage and apply the percentage to the appreciated asset. 
In McSparron v McSparron, the Court of Appeals held that a professional degree or license which has been used by the licensee to establish and maintain a career does not "merge" with the career or ever lose its character as a separate, distributable asset. The Court of Appeals cautioned that care must be taken to ensure that the monetary value assigned to the license does not overlap with the value assigned to other marital assets that are derived from the license and that courts must also be meticulous in guarding against duplication in the form of maintenance awards that are premised on earnings derived from professional licenses.
The Appellate Division, Fourth Department attempted to avoid duplicative awards in Wadsworth v Wadsworth,  where, rather than limit the maintenance award, it "McSparronized" the property distribution by holding that to avoid a double count, the income used in determining the present value of the law practice had to be deducted from the calculation of the future enhanced earning capacity, and that where there is a maintenance award, "the court [is] obliged to reduce the value of the enhanced earnings by the amount awarded in maintenance. Not to do so would involve a double counting of the same income."
In Grunfeld v Grunfeld, the trial judge ordered Harold Grunfeld to pay his wife Rochelle maintenance of $15,000 per month until the sale of the marital home one year after their younger child was to enter college, in 2000. Then, maintenance was to be reduced to $8,500 per month. The court determined the value of Harold’s license to practice law for equitable distribution purposes. Because the parties did not marry until Harold was halfway through law school, only one-half of the license was a marital asset. The sum of the license's bare value and enhanced earnings potential was found to be $1,547,000. The Supreme Court stated that it had considered all of Harold’s future income in fixing the maintenance award. It noted that the method of determining the value of Harold's license was based on the earnings differential between reasonable compensation and the income of a non-licensed college graduate. It then explained that it would violate the McSparron rule against double counting to actually award one-half the value of the license, since the earnings differential upon which it was based had already been considered in fixing the award of maintenance. To avoid giving Rochelle two separate awards derived from the same stream of future income, the trial court excluded the license from the marital assets in determining the distributive award.
The Appellate Division modified the trial courts’ award, directing that the one-half of the value of Harold's professional license, $773,500, should also have been distributed to Rochelle. It held that the reduction of maintenance from $15,000 to $8,500 per month should begin following full payment of the distributive award.
The Court of Appeals modified the order of the Appellate Division because it double counted Harold’s income in ordering that Rochelle should receive both unreduced maintenance and the full distributive award of one-half the value of Harold's law license. The Court of Appeals pointed out that Supreme Court included as part of Harold's earning capacity the projected earnings derived from his professional license. It also used the same earnings attributable to the law license to determine the present value of the license as a marital asset. The Court of Appeals held that to comply with McSparron, Supreme Court had to reduce either the income available to make maintenance payments or the marital assets available for distribution, or some combination of the two. Once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout. It stated that where license income is considered in setting maintenance, a court can avoid double counting by reducing the distributive award based on that same income. "The necessity of this reduction was recognized in Wadsworth v Wadsworth (219 AD2d 410). Not to do so would involve a double counting of the same income.” The court noted that "One advantage of this method is that the maintenance award may be adjusted in the future if the licensed spouse's actual earnings turn out to be less than expected at the time of the divorce." It added: "This method is also consistent with our observation that in particular cases the value of the license ‘may be nominal’." It also noted that "there may be cases where it is more equitable to avoid double counting by reducing the maintenance award (***). Where the license is likely to retain its value in the future but the non-licensed spouse may only be entitled to receive maintenance for a short period of time, it may be fairer actually to distribute the value of the license as marital property rather than to take the license income into consideration in determining the licensed spouse's capacity to pay maintenance."
The Court of Appeals found that the Appellate Division based its ruling, in part, on the fact that "defendant's future earnings" – which only could be expected to come from his own professional endeavors – were likely "to exceed $1 million yearly." Additionally, that court apparently recognized that income from other resources could only be expected to support "a portion of the maintenance." It held that by ordering full distribution of Rochelle’s share of Harold's license without any adjustment of maintenance, the Appellate Division engaged in double counting of income, which was inconsistent with McSparron. Therefore, it sent the case back to the Supreme Court to recalculate the required reduction in the license distributive award, in accordance with McSparron and its opinion.
In Keane v Keane, the Court of Appeals, in an opinion by Judge Rosenblatt, held that the principal enunciated in Grunfeld v. Grunfeld  and McSparron v. McSparron,  that in divorce actions a court should not twice count the income associated with a professional license, an intangible asset, when making distributive and maintenance awards, does not extend to the distribution of a tangible, income-producing asset and the subsequent award of maintenance from income deriving from that asset.
The valuation date for marital assets must be between the date of commencement and the date of trial. 
The burden upon a party arguing that an asset is active, and should be valued as of the commencement of the action, is to prove that any change in the value of that asset was due solely to his efforts, to the exclusion of all other factors.
The Second Department has noted that one date mentioned as a date to be utilized for valuation is that of the date of the commencement of the matrimonial action. The valuation date would, in most cases, then coincide both with the date at which marital property is identified.  It observed that this rule could lead to injustice if the asset has significantly increased or decreased in value between the date of commencement and the date of trial of the action. If an asset increases in value due to market forces or inflation, valuation as of the date of commencement of the action would result in a windfall to the titled spouse and injustice to the other. If the asset greatly decreased in value, as would be the case, for example, if a closely held corporation lost a major customer, a court which values assets at the date of commencement of the action might make a distributive award that is beyond the owner spouse's ability to pay. A rule requiring valuation at the time of trial could be equally unworkable. In some cases, practical problems could arise if proof of value at the date of trial is unavailable. Injustice could result if the value of an asset significantly decreased after the commencement of the action due to wasteful dissipation or other fault of the owner spouse. In this type of circumstance, it might be unfair to, in effect, force the blameless spouse to share a portion of the loss. An asset such as, for example, a business, might suddenly appreciate in value due solely to the efforts of the owner spouse. If a considerable period of time has elapsed since the date of commencement or the date of separation, the court might be justified in establishing a valuation date earlier than the date of trial. In many cases, valuation of marital assets as of a date as close to the time of trial as practicable will result in an award which is fair to both parties. During a long delay between the date of commencement and the date of the trial many assets, particularly businesses may experience fluctuations that might dramatically change the logic of the distribution. Under such circumstances, the valuation of assets close to the time of trial may result in the formulation of an award consistent with the purpose of equitable distribution and insure that each spouse receives a fair share of the family assets accumulated while the marital relationship endured. However, in other cases, circumstances may exist which would justify the use of a valuation date closer to the time of commencement of the action. A sharp increase in the value of a marital asset due solely to the efforts of the owner spouse might be such a circumstance. Similarly, a dramatic reduction in value due to dissipation or wasteful conduct of the owner spouse might justify the use of a date earlier than the date of trial.
The First Department subsequently observed that courts have consistently recognized that assets such as undeveloped real estate or mutual funds, which appreciate in value strictly as a result of random market fluctuations or the efforts of others, constitute passive assets, while assets that appreciate due to the efforts of the titled spouse are active.  It held that passive assets should generally be valued as of the trial date so as to prevent a windfall to the titled spouse if the asset has increased in value; active assets should generally be valued as of the commencement date of the action in order to benefit the titled spouse, since any appreciation in value is the product of that spouse's labors. 
In McSparron v. McSparron, the Court of Appeals observed that in attempting to select a suitable valuation date, some courts have drawn a distinction between “active” assets (i.e., those whose value depends on the labor of a spouse) and “passive assets” (i.e., those whose value depends only on market conditions). These courts have concluded that “active” assets should be valued only as of the date of the commencement of the action, while the valuation date for “passive” assets may be determined more flexibly. It held that such formulations, however, may prove too rigid to be useful in particular cases. Thus, they should be regarded only as helpful guideposts and not as immutable rules of law.
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), (commonly known as the Equitable Distribution Law), the evaluation of the marital property, and then its allocation pursuant to the factors enumerated in subdivision (5)(d). The trial court must set forth the factors it considered and the reasons for its decisions.
The 1980 enactment of the Equitable Distribution Law  set forth 10 factors for the court to consider in determining an equitable disposition of property. In 1986 three new factors were added to the original 10 factors that the court was required to consider in determining an equitable disposition of property. As of August 2, 1986, the statute required to court to consider 13 factors in determining an equitable disposition of property. In 2009 Domestic Relations Law §236 [B]  [d], subparagraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 were renumbered and a new subparagraph 5 was added. In any action commenced after September 15, 2009, the court is required to consider 14 factors in determining an equitable disposition of property. Domestic Relations Law § 236 (B)] (5) (d) provides:
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.
Copyright 2017, Joel R. Brandes and Joel R. Brandes Consulting Services, Inc., All rights reserved.
 See 3, Freed, Brandes and Weidman, Law and the Family New York § 2:1 et seq. (Marital Property) [2d ed rev 1993]).
 NY 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); Questel v. Questel, 39 Misc. 3d 667, 960 N.Y.S.2d 860 (Sup 2013); DeLapp v. DeLapp, 37 A.D.3d 1161, 829 N.Y.S.2d 381 (4th Dep't 2007); Ropiecki v. Ropiecki, 94 A.D.3d 734, 941 N.Y.S.2d 650 (2d Dep't 2012).
 In Brennan v. Brennan, 103 A.D.2d 48, 54, 479 N.Y.S.2d 877 (1984) the Appellate Division held that error was also 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. “In 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.”)
 Laws of 2015, Ch. 269 amended Domestic Relations Law §236 [B][a], Domestic Relations Law §236 [B][d], Domestic Relations Law §236 [B], Domestic Relations Law § 248, Domestic Relations Law §236 [B][b] , and Family Court Act § 412, effective January 23 , 2016. Laws of 2015, Ch. 269 amended Domestic Relations Law § 236 [B] [5-a], effective October 25, 2015. See Laws of 2015, Ch. 269, Section 8, which reads as follows: 8. This act shall take effect on the one hundred twentieth day after it shall have become a law and shall apply to matrimonial actions and family court actions for spousal support commenced on or after such effective date; provided however that section three of this act shall take effect on the thirtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date. Nothing in this act shall be deemed to affect the validity of any agreement made pursuant to subdivision 3 of part B of section 236 of the domestic relations law or section 425 of the family court act prior to the effective date of this act.
 See Volume 3B, Law and the Family New York, 2d Edition Revised § 16:11 Merger of Professional Licenses and Academic Degrees; § 16:11.1 McSparron: The Demise of the ‘‘Merger’’ Fiction; § 16:11.2 Effect of Grunfeld upon distributive award; § 16:12 Valuation of Professional Degrees, Licenses, and Academic Degrees; and § 16:13 Aftermath of O'Brien: Careers and Enhanced Earning Capacity
 In Biddlecom v. Biddlecom, 113 AD2d 66, 495 NYS2d 301 (4 Dept. 1985), the court held that severance benefits received by the former husband as part of his early retirement following the divorce, as well as an additional monthly payment he received as a supplemental benefit, were designed to compensate employees for the lack of eligibility for Social Security benefits and to serve as inducement for early retirement, and are not marital property subject to Equitable Distribution, but are the separate property of the retired husband. In Howe v Howe, 68 A.D.3d 38, 886 N.Y.S.2d 722 (2 Dept. 2009) the plaintiff became a New York City firefighter soon after the parties were married, and remained in that employment until approximately 16 months prior to the commencement of this action. The wife cross appealed from that part of the judgement that awarded the plaintiff 100 percent of the remaining funds from his September 11th Victim Compensation Fund award. The plaintiff received an award from the September 11th Victim Compensation Fund as a result of injuries he suffered in the aftermath of that tragedy. The administrator of that fund specifically designated a portion of that award, in the amount of $127,571, as compensation for economic loss. The Supreme Court held that the economic component of the award constituted 'compensation for personal injuries' within the meaning of Domestic Relations Law 236(B) (1) (d) (2) and, on that basis, treated the award as the separate property of the plaintiff. The Appellate Division agreed with that determination, because, inter alia, the legislative history of the Equitable Distribution Law compelled it. The Second Department rejected the rule in the other departments that the economic component of a personal injury award is separate property, which is derived from the holding of the Appellate Division, Third Department, in Fleitz v. Fleitz (200 AD2d 874) and the decisions of the Appellate Division, First Department and the Appellate Division, Fourth Department, that have followed it (see Gann v. Gann, 233 AD2d 188; Solomon v. Solomon, 206 AD2d 971).
 Domestic Relations Law §236 [B] (1) (d) (3).
 See Sanders v. Copley, 151 A.D.2d 350, 543 N.Y.S.2d 67 (1st Dep̀t 1989); Rubenfeld v. Rubenfeld , 279 A.D.2d 153, 720 N.Y.S.2d 29 (1st Dep’t 2001); Harrington v. Harrington, 103 A.D.2d 356, 479 N.Y.S.2d 1000 (2d Dep’t 1984). See 3, Freed, Brandes and Weidman, Law and the Family New York § 2:4 et seq. [2d ed rev 1993]).
 Domestic Relations Law §236 [B][b]
 Domestic Relations Law §236 [B][a]
 Domestic Relations Law §236 [B][b]
 Domestic Relations Law §236 [B][c]
 Domestic Relations Law §236 [B][e]
 Domestic Relations Law §236 [B][e]
 Domestic Relations Law § 236 [B]
 Fields v. Fields, 15 N.Y.3d 158, 165, 931 N.E.2d 1039, 1043 (2010) (“ This case involves the application of the well-settled statutory presumption that all property acquired by either spouse during the marriage, unless clearly separate, is deemed marital property”)
 Helen A. S. v Werner R. S., 166 AD2d 515, 560 NYS2d 797 (2d Dept. 1990); Sarafian v Sarafian, 140 AD2d 801, 528 NYS2d 192 (1988).
 Lauzonis v. Lauzonis 105 AD3d 1351, --- N.Y.S.2d ---- (4 Dept. 2013). The foundation for the holding that where the property at issue is held jointly, “an equal disposition of that property should be presumptively in order, with the burden on the party seeking a greater share to establish entitlement is questionable since the funds deposited into the joint account were martial property to begin with and Diner v Diner , 281 A.D.2d 385, 386, 721 N.Y.S.2d 667 (2d Dept. 2001) and the cases cited by the court in support of its holding, and the cases cited in Diner, refer to situations where separate property is deposited into a joint account.
 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)
 Capasso v. Capasso, 129 A.D.2d 267, 517 N.Y.S.2d 952 (1 Dept., 1987); Hirschfeld v. Hirschfeld 96 AD2d 473,464 NYS2d 789 (1st Dept., 1983) (husbands law practice); Antoian v Antoian, 215 AD2d 421, (2d Dept., 1995) (husbands business); Post v Post, 68 AD3d 741 (2d Dept., 2009) (husbands business); Sutera v Sutera, 123 AD3d 909 (2d Dept., 2014) (husbands business).
 Domestic Relations Law 236[B][c]
 In Antoian v. Antoian, 215 A.D.2d 421, 422, 626 N.Y.S.2d 535 (1995) the defendant contended that the court erred in failing to value the plaintiff's business, G&W Dairy Distributors, Inc. The Appellate Division held that defendant, as the party seeking an interest in this asset, had the burden of establishing its value. The defendant failed to present sufficient proof to rebut the plaintiff's assertion that the business had no value at the time of trial and to enable the court to assess its value . Thus, the court properly declined to include the value of the business in the marital estate. In Goudreau v. Goudreau, 283 A.D.2d 684, 685, 86, 724 N.Y.S.2d 123 (3d Dept. 2001) the Appellate Division held that the plaintiff, as the party seeking an interest in the defendants contracting business, submitted no proof of its value or any articulation of what constituted business assets Supreme Court properly excluded it from the distribution of marital property. Considering the lack of any proof of business value and deferring to Supreme Court's credibility determinations, it concluded that the distribution of the marital property was equitable. In Post v. Post, 68 A.D.3d 741, 743, 890 N.Y.S.2d 581 (2d Dept., 2009) the Second Department held that the court erred in awarding the plaintiff a portion of the defendant's business. The plaintiff, as the party seeking an interest in the business, submitted no proof of its value, and failed to identify the business assets. The Supreme Court did not determine any assets of the business, but awarded the plaintiff $43,000 based upon the defendant's income. The Appellate Division found that the court's award was not supported by the record as there was no proof of business value or assets. In Sutera v Sutera, 123 AD3d 909 (2d Dept.,2014) the Appellate Division held that the Supreme Court properly declined to make a distributive award of the plaintiffs alleged money-lending business due to the insufficient evidence of the existence and value of such business.
 In London v. London, 21 A.D.3d 602, 799 N.Y.S.2d 646 (3d Dep't 2005), the Appellate Division observed that the findings recited that no evidence was received with respect to market value of the two residences either at the time of trial or the time of commencement of the action, nor was evidence received with respect to the value of much of the personalty, rendering the record insufficient for independent review. The Appellate Division held that as the nontitled spouse, plaintiff had the burden of establishing the value, if any, that was added to the marital residence by her direct or indirect contributions during the marriage. As she did not, Supreme Court should not have awarded her any interest in this asset. Moreover, it was error for Supreme Court to order this separate property sold. Supreme Court also found that defendant's Wachovia securities account and defendant's pension and profit-sharing trust plans were marital assets despite uncontroverted evidence that these plans were established prior to the marriage. There was a marital component to these assets, however, as contributions were made after the marriage. Defendant argued that plaintiff was entitled to no share in these assets by reason of her failure to offer proof of valuation concerning the separate and marital portions of these assets. The Court held that such proof is however, only if the asset will be the subject of a distributive award. Rather than make a distributive award, Supreme Court erroneously equally divided these accounts and directed that a Qualified Domestic Relations Order be employed, if necessary, to transfer half of these funds to an individual retirement account in plaintiff's name. Such a distribution gave defendant no credit for his separate property interest in these accounts. There appeared to be no reason why the Majauskas formula (see "Majauskas v. Majauskas, 61 N.Y.2d 481, 488-493, 474 N.Y.S.2d 699, 463 N.E.2d 15, 6 Employee Benefits Cas. (BNA) 1053 (1984)) should not be applied to properly distribute these accounts. Neither party submitted competent evidence of value of any other asset. Both made irreconcilable claims of the value of household furnishings, and both attempted to submit evidence concerning the value of automobiles, jewelry and an all-terrain vehicle. Despite a lack of evidence, Supreme Court directed defendant to sell his Rolex watch and the all-terrain vehicle and divide the proceeds equally with plaintiff, while ignoring plaintiff's own Rolex watch, thousands of dollars’ worth of jewelry given to her during the marriage by defendant and all of the household furnishings, leaving all with plaintiff. The Court held that upon remittal, the marital residence and the Wachovia securities account were to be awarded to defendant as his separate property and the house could not be ordered sold. Defendant's pension and profit-sharing plans that he originated prior to marriage were to be divided in accordance with the Majauskas formula and Supreme Court was directed to require plaintiff's counsel to submit a Qualified Domestic Relations Order to accomplish this division.
 In Thom v Thom, 162 A.D.2d 811, 558 N.Y.S.2d 219 (3d Dept., 1990) the Appellate Division affirmed that part of the judgment which ordered the sale of the marital residence and equal distribution of the proceeds. The record indicated that the parties jointly purchased the residence in 1985 with a down payment from the proceeds of the sale of another house they jointly owned. The parties had no other assets apart from the house and its contents. Since no expert witnesses gave any appraisal value of the home and defendant raised no objections, Supreme Court's order that the property not be sold for less than $145,000 was reasonable as is its ordered division of the proceeds.
 In Mele v. Mele, 152 A.D.2d 685, 686, 544 N.Y.S.2d 25, 26 (2d Dept., 1989), where the distribution of an unvalued pension was involved the court stated: " As to the issue of valuation, where, as here, the court has properly considered the parties' monetary and nonmonetary contributions to the marriage and the feasibility of a lump-sum award and the proper formula has been applied, valuation of the parties' respective interests may not be required (see, Van Housen v. Van Housen, 114 A.D.2d 411, 494 N.Y.S.2d 135)."
 In Spector v Spector, NYLJ, Feb. 16, 1984, p. 12, col. 1 (Sup Ct, NY Co.) the Supreme Court simply distributed marital property in kind, without arriving at fixed percentages. The wife received all income producing properties. The husband was directed to hold the vacation home until wife's death or the child's majority and the wife was awarded exclusive occupancy 3 1/2 months of year. The wife received properties worth $319,000 subject to $51,000 mortgages. The decision was not appealed.
 103 A.D.3d 599, 960 N.Y.S.2d 384 (1st Dep't 2013), leave to appeal dismissed in part, denied in part, 22 N.Y.3d 913, 975 N.Y.S.2d 733, 998 N.E.2d 397 (2013),
 See Gredel v. Gredel, 128 A.D.2d 834, 513 N.Y.S.2d 754 [2d Dept.1987], leave dismissed 70 N.Y.2d 693, 518 N.Y.S.2d 1028 ; Moller v. Moller, 188 A.D.2d 807, 591 N.Y.S.2d 244 [3d Dept.1992]). In Gredel v. Gredel, 128 A.D.2d 834, 513 N.Y.S.2d 754, 755 (2d Dept., 1987) the plaintiff sought to modify the divorce judgment to provide that she was entitled to sole ownership of the parties' Connecticut real property and a distributive award of the defendant's pension. The plaintiff, as the one seeking an interest in these assets, had the burden of establishing their value and her interest therein. The Appellate Division found that the plaintiff failed to present sufficient proof to the referee at the inquest, to enable the court to make distributive awards with respect to these assets. In Moller v. Moller, 188 A.D.2d 807, 808, 591 N.Y.S.2d 244, 246 (3d Dept., 1992) neither party supplied any evidence of the value of any particular personal assets claimed to be marital property. The Appellate Division held that in the absence of any claimed value or reasons for treating the personalty as marital property, Supreme Court properly refused to consider any equitable distribution of those assets. In N.H. v. S.H., 28 Misc. 3d 1217(A), 958 N.Y.S.2d 62 (Sup. Ct. 2010) the court stated:" In light of the parties' complete failure to satisfy their respective burdens of proof regarding the parties' separate or marital assets, this Court is unable to direct any specific distribution of assets.
 In Damiano v Damian, 94 AD2d 132 the Appellate Division held that, despite its contingent nature, a pension benefits belonging to either spouse attributable to employment during the marriage, whether those benefits are vested or nonvested, and whether the plan is contributory or noncontributory, constitute marital property subject to equitable distribution upon divorce. The marital property, however, shall include only that portion of the pension benefits which have accrued during the marriage and prior to the commencement of the divorce action (see Domestic Relations Law, § 236, part B, subd 1, par c). The non-employee spouse's right to pension benefits may be enforced primarily by two methods. One is to award the nonemployee spouse a lump sum, calculated by determining the present value of the pension benefits at the time of the divorce, the percentage of that value attributable to the period between the date of the marriage and the commencement of the divorce action, and the appropriate equitable share to which the non-employed spouse is entitled. The payment of a lump sum can often be accomplished by the redistribution of other marital assets as, for example, the proceeds of the sale of the marital residence. A second method, often preferable where contingencies make the determination of present value difficult or where there are insufficient marital assets from which to derive large lump-sum payments, is to award the nonemployee spouse a specific share of the periodic pension benefits the employed spouse will receive in the future. To do so, a court must determine the percentage of future pension payments attributable to the period of the marriage prior to the commencement of the divorce action and the appropriate equitable share to which the non-employed spouse is entitled. The case was remitted for further proceedings In Rodgers v Rodgers (1983, 2d Dept.) 98 App Div. 2d 386, 470 NYS2d 401. the Appellate Division observed that a lump-sum award is preferable when the amount the nonemployee spouse will receive is small and there is sufficient marital property to be awarded in lieu of a deferred interest, for enforcement problems may be avoided and finality achieved before the actual receipt of retirement benefits which may be years in the future. Also, care must be taken not to consider the pension interest twice, once as an asset for property division and again as an income item utilized in ascertaining maintenance.
 In Bidwell v. Bidwell 122 A.D.2d 364, 365-66, 504 N.Y.S.2d 327, 329 (3d Dept.,1986) plaintiff argued on appeal that Trial Term erred in not permitting plaintiff's labor expert to testify concerning the value of plaintiff's services as a homemaker and that this ruling adversely affected plaintiff's rights to a more equal distribution of marital property. She argued too that the disallowance of her expert's testimony as to her future earning capacity was to her detriment on the question of maintenance. The Appellate Division found no merit in plaintiff's argument. Since Trial Term concluded that plaintiff was entitled to distribution of marital property, the value of her services as a homemaker was irrelevant. Moreover, the value of such services is not a subject which necessitates elucidation by expert testimony. See Ashdown v. Kluckhohn, 62 A.D.2d 1137, 404 N.Y.S.2d 461, 463 (4th Dept., 1978) (“Nor do we find that on the record presented the trial court erred in following Zaninovich v. American Airlines, 26 A.D.2d 155, 271 N.Y.S.2d 866, and excluding the proffered expert testimony concerning the cost of providing an employee to perform household services. The jury could use its own knowledge in assessing how much, if any, pecuniary loss the husband sustained by virtue of the loss of his wife's services in performing the household duties.”); Zaninovich v. American Airlines, 26 A.D.2d 155, 271 N.Y.S.2d 866 (1st Dept.,1966)
 Conner v Conner, 97 App Div 2d 88, 468 NYS2d 482 (2 Dept.1983).
 See, e.g., EPTL 5-1.1, 5-3.1
 Domestic Relations Law § 236[B][b]
 Domestic Relations Law § 236 (B)(5)(b).
 Domestic Relations Law §236 (B) (1)(c) and (1)(d).
 Domestic Relations Law § 236[B][d]
 Domestic Relations Law § 236[B][d]
 Domestic Relations Law § 236[B][d]
 See Connor v. Connor, 97 AD2d 88, 468 NYS2d 482 (2d Dept. 1983). Almost every New York case has applied the "source of the funds approach.” See Duffy v. Duffy, 94 AD2d 711, 462 NYS2d 240 (2d Dept. 1983). See 3, Freed, Brandes and Weidman, Law and the Family New York § 2:10 et seq. [2d ed rev 1993]).
 Banking Law §678 allows depositors to establish accounts “for the convenience" of the depositor. The making of a deposit of cash, securities or other property into such an account does not affect the title to the deposit, and the depositor is not considered to have made a gift of one half of the deposit or any additions or accruals thereon to the other person, and on the death of the depositor the other person does not have a right of survivorship in the account. See Banking Law § 678, as added by Laws of 1990, Ch. 436&s;.
 In Di Nardo v Di Nardo (1988, 4th Dept) 144 App Div 2d 906, 534 NYS2d 25, in modifying the divorce judgment, the Appellate Division held that a $32,214.00 check received by the husband from his mother's estate, plus accrued interest, was converted to marital property by comingling it with other assets in a joint account where it remained for a period of seven years. By placing this check in a joint account, a presumption arises that the parties are entitled to equal shares of the account. Defendant's proof failed to overcome this presumption. See also Midy v. Midy, 45 A.D.3d 543, 846 N.Y.S.2d 220 (2d Dep't 2007)
 In Feldman v Feldman (1993, 2d Dept) 194 AD2d 207, 605 NYS2d 777, the Appellate Division held that both the husband's 30 percent interest in his father's corporation and the 30 percent interest in its real property which the husband acquired upon the sale of this business in 1981 were separate property upon their receipt. The record did not demonstrate that the funds received by the husband through gift and inheritance were transmuted into marital property by the actions of the parties. While the record revealed that the two payments which the husband received from his parents' estates were deposited in a joint bank account, these funds were ultimately used to purchase the $275,000 worth of treasury bills which the parties agreed to equally divide. The husband placed the remaining funds from his parents' estates as well as the proceeds derived from the sale of other properties in his individual bank accounts. The fact that a portion of the husband's inherited funds were deposited in a joint account did not support the inference that the husband intended to treat all subsequently received funds which were placed in his individual bank accounts as marital property. In Harris v. Harris, 97 A.D.3d 534, 948 N.Y.S.2d 343 (2d Dep't 2012) the Appellate Division found that at the time the plaintiff received her award for personal injuries, that award constituted separate property. However, the plaintiff deposited that separate property into a jointly held investment account, creating a presumption that those funds constituted marital property. Although that presumption is rebuttable, and a depositor may create a joint account with the right of survivorship “without necessarily transferring a present beneficial interest in the funds in the account” the plaintiff used money in the account to pay marital expenses. Thus, those funds did not retain their character as separate property. The evidence supported Supreme Court's conclusion that the plaintiff failed to rebut the presumption that the subject funds were marital property.
 Chiotti v. Chiotti, 12 A.D.3d 995, 996, 785 N.Y.S.2d 157 (2004); Arnold v. Arnold, 309 A.D.2d 1043, 1044, 765 N.Y.S.2d 686 (2003); Rosenkranse v. Rosenkranse, 290 A.D.2d 685, 686, 736 N.Y.S.2d 453 (2002).
 Currie v. McTague, 83 A.D.3d 1184, 1185, 921 N.Y.S.2d 364 (2011); Burtchaell v. Burtchaell, 42 A.D.3d 783, 787, 840 N.Y.S.2d 449 (2007); Kay v. Kay, 302 A.D.2d 711, 713, 754 N.Y.S.2d 766 (2003).
 O'Brien v O'Brien (1985) 66 NY2d 576, 498 NYS2d 743, 489 NE2d 712, on remand (2d Dept) 120 App Div 2d 656, 502 NYS2d 250, later proceeding (2d Dept) 124 App Div 2d 575, 507 NYS2d 719; Sarafian v Sarafian, 140 AD2d 801 [3 Dept. 1983); Heine v. Heine, 176 A.D.2d 77, 580 N.Y.S.2d 231 [1 Dept., 1992]); Helen A.S. v Werner R.S., 166 App Div 2d 515, 560 NYS2d 797 (2d Dept.,1990)
 Pullman v Pullman, 176 AD2d 113 (1st Dept., 1991); DiNardo v DiNardo, 144 AD2d 906; Lischynsky v Lischynsky, 120 AD2d 824; Sarafian v. Sarafian, 140 A.D.2d 801, 803-04, 528 N.Y.S.2d 192 (1988)
 Spera v Spera, 71 AD3d 661 ( 2d Dept.,2010)
 Fields v Fields, 15 NY2d 158 (2d Dept, 2010); Patete v Rodriguez, 109 Ad3d 595 (2d Dept.,2013); Duffy v Duffy, (1983, 2d Dept) 94 App Div 2d 711, 462 NYS2d 240; Parsons v Parsons, (1985, 4th Dept) 115 App Div 2d 289, 496 NYS2d 138; Coffey v Coffey, (1986, 2d Dept) 119 App Div 2d 620, 501 NYS2d 74.
 In Murray v. Murray, 101 A.D.3d 1320, 956 N.Y.S.2d 252 (3d Dep't 2012), the Appellate Division found that denying the husband a credit for the premarital value of the Queens County property was within Supreme Court's discretion. While a credit is often given for the value of the former separate property, such credit is not strictly mandated since the property is no longer separate, but is part of the total marital property.”” There is no single template that directs how courts are to distribute a marital asset that was acquired, in part or in whole, with separate property funds”” (Fields v. Fields, 15 N.Y.3d 158, 167, 905 N.Y.S.2d 783, 931 N.E.2d 1039 (2010)). See also Alecca v. Alecca, 111 A.D.3d 1127, 1128, 975 N.Y.S.2d 801 ; Myers v Myers, 119 A.D.3d 1114, 989 N.Y.S.2d 537 (3d Dept.,2014).
 See, e.g., Lolli-Ghetti v Lolli-Ghetti, 165 AD2d 426, 432; Coffey v Coffey, 119 AD2d 620, 622.
 Citing Smerling v Smerling, 177 AD2d 429; Heine v Heine, 176 AD2d 77; Zelnik v Zelnik, 169 AD2d 317; Kallins v Kallins, 170 AD2d 436; Greenwald v Greenwald, 164 AD2d 706.
 See also Mesholam v Mesholam, 11 N.Y.3d 24, 892 N.E.2d 846, 862 N.Y.S.2d 453 (2008).
 Laws of 1980, Ch 281, effective July 19, 1980.
 Laws of 1986, Ch 884, §3, effective August 2, 1986. Laws of 1986, Ch. 884 shifted former factor (10) to factor (13) and added: (10) the tax consequences to each party; (11) the wasteful dissipation of assets by either spouse; (12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.
 Laws of 2009, Ch 229, effective September 15, 2009 and applicable to any action or proceeding commenced on or after such effective date.