In a case before Justice Richard Dallinger, who sits in Supreme Court in Monroe County New York, the husband sought to have a social security, disability and workmen’s compensation benefits declared separate property under the New York Domestic Relations Law. He claimed these payments should not be considered income for purposes of giving his wife spousal maintenance in their pending divorce lawsuit.
Were the Benefits Income?
The counsel for the wife alleged these benefits were income. Since they were income it was claimed they must be included with regard to the calculation of spousal maintenance.
Benefits were Husband’s Separate Property
Justice Richard Dallinger ruled the benefits were the husband’s separate property. However, since they were separate property the corpus of the assets could not be allocated on a percentage basis to the wife. He did find t New York courts have held the mere fact a source of income was separate property did not prohibit a court from considering this income in calculating spousal maintenance. Justice Dallinger therefore rejected the husband’s claim that only a portion of the related to lost wages should be considered income for the purpose of calculating spousal maintenance.
Yes, The Benefits were Income
Justice Dallinger allowed the social security, disability and workmen’s compensation to the husband to be considered income and utilized in the calculation of the wife’s spousal maintenance award.
Conclusion
Here the husband won one argument but lost on another.
Elliot S. Schlisel is the managing partner of Schlissel DeCorpo LLP. For more than 35 years he has been representing clients in divorce lawsuitdivorce cases throughout the Metropolitan New York area. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.
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