How do the courts determine what an equitable distribution of property between divorcing spouses is?

5. Disposition of property in certain matrimonial actions.

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c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.

d. 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. 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;

(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;

(14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts;

(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal", as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and

(16) any other factor which the court shall expressly find to be just and proper.

g. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel.

Domestic Relations Law § 236(B)(5)(d) sets forth the factors a court must consider when making an equitable distribution award. The statute does not specifically provide for consideration of marital fault, but does contain a catchall provision that allows a court to consider "any other factor which the court shall expressly find to be just and proper" (Domestic Relations Law § 236[B][5][d][14]). We have, however, rejected the notion that marital fault is a "just and proper" factor for consideration, "[e]xcept in egregious cases which shock the conscience of the court" (O'Brien v. O'Brien, 66 N.Y.2d 576, 589-590, 498 N.Y.S.2d 743, 489 N.E.2d 712 [1985]). This rule is based, in part, upon the recognition that marriage is, among other things, an economic partnership and that the marital estate should be divided accordingly. We also observed that "fault will usually be difficult to assign and [that] introduction of the issue may involve the courts in time-consuming

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procedural maneuvers relating to collateral issues"

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(O'Brien, 66 N.Y.2d at 590, 498 N.Y.S.2d 743, 489 N.E.2d 712).

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 "any 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 (see e.g. Micha v. Micha, 213 A.D.2d 956, 957-958, 624 N.Y.S.2d 465 [3d Dept.1995]; Carney v. Carney, 202 A.D.2d 907, 609 N.Y.S.2d 425 [3d Dept.1994]). Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a "wasteful dissipation of

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assets" (Domestic Relations Law § 236[B][5][d][11]) by his or her expenditures provides protection. The payment of maintenance to a former spouse, however,

[909 N.E.2d 66]

does not fall under either of these categories.

Domestic Relations Law § 236(B)(5)(d) sets forth a number of factors which a court "shall consider" in determining the equitable distribution of marital property. Domestic Relations Law § 236(B)(5)(g), moreover, provides that a court "shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel". We find that the trial court failed to comply with the latter requirement by neglecting to set forth the factors it considered and the reasons for its decision (see, Nielsen v. Nielsen, 91 A.D.2d 1016, 457 N.Y.S.2d 888). Furthermore, although this court is empowered to make determinations as to equitable distribution in situations where the trial court has omitted specific reference to the factors upon which its decision was based (see, Kobylack v. Kobylack, 62 N.Y.2d 399, 403, 477 N.Y.S.2d 109, 465 N.E.2d 829; Majauskas v. Majauskas, 61 N.Y.2d 481, 493-494, 474 N.Y.S.2d 699, 463 N.E.2d 15; Damiano v. Damiano, 94 A.D.2d 132, 134, 463 N.Y.S.2d

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477), we decline to do so in the instant case absent a detailed record of the reasoning employed by the court (see, O'Brien v. O'Brien, 120 A.D.2d 656, 657, 502 N.Y.S.2d 250; Dolan v. Dolan, 101 A.D.2d 824, 475 N.Y.S.2d 483; Hornbeck v. Hornbeck, 99 A.D.2d 851, 472 N.Y.S.2d 456; cf., Duffy v. Duffy, 94 A.D.2d 711, 712, 462 N.Y.S.2d 240). We therefore remit the matter to the Supreme Court for a new determination based on findings of fact in compliance with Domestic Relations Law § 236(B)(5)(g).

Plaintiff contends that Trial Term erred by not awarding her a one-half interest in the 112 shares of IBM stock and a one-half interest in the proceeds of the sale of the parties' savings bonds. Although we find such a disposition appealing, we must under the circumstances presented, remit this matter to Trial Term for further consideration. Section 236 (Part B, subd. 5, par. g) of the Domestic Relations Law relating to the equitable distribution of marital property provides:

In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel (emphasis added).

We construe this provision to be mandatory, and that the factors referred to are the 10 enumerated items in paragraph d of the above statute (see Nielsen v. Nielsen, 91 A.D.2d 1016, 457 N.Y.S.2d 888). In its decision, Trial Term stated that "only relevant consideration here is the economic aspect of the marriage". We do not believe this conclusion conforms with the mandate of the statute and, although it is not our purpose to impose additional burdens upon the trial justices, we view these requirements as a legislative directive. Moreover, such a delineation of reasons is necessary in order to provide a basis for intelligent review upon appeal. Accordingly, there should be an indication of which of the 10 factors itemized in the statute are considered and, if considered, a brief and succinct statement relating thereto. If a factor is not considered, the reason therefor should be so indicated (Domestic Relations Law, § 236, Part B, subd. 5, par. d).

The judgment should be modified, on the law, by reversing so much thereof as disposed of the parties' IBM stock and Series E savings bonds, and the matter remitted for further proceedings not inconsistent herewith, and, as so modified, affirmed, without costs.

The husband's contentions with regard to the equitable distribution of the marital assets also are without merit. In making a determination as to equitable distribution of the

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marital assets, the Referee properly considered the statutory factors enumerated in the version of Domestic Relations Law § 236(B)(5)(d) in effect at the time this action was commenced. Contrary to the husband's contention, the record supports the conclusion that he wastefully dissipated at least $285,000 in assets by choosing to abandon several business ventures, including Multi, Inc. (see Domestic Relations Law § 236[B][5][d] [12] ; Kerley v. Kerley, 131 A.D.3d 1124, 1126, 17 N.Y.S.3d 150 ; Owens v. Owens, 107 A.D.3d 1171, 1175–1176, 967 N.Y.S.2d 465; Altieri v. Altieri, 35 A.D.3d 1093, 1095–1096, 827 N.Y.S.2d 735 ). The husband's contentions to the contrary primarily implicate the credibility determinations of the Referee, which again we decline to disturb.