Larowitz v. Lebetkin (App Div., 1st Dep’t)

Plaintiff (hereafter “the wife”) and the defendant (hereafter “the husband”) entered into a judgement of divorce dated October 9, 2015. In the judgement, the marital residence was deemed the plaintiff’s separate property and the defendant was awarded 5% of the appreciation in value of the marital residence.

The defendant contends that distributive awards of 5% are only for spouses who commit heinous domestic violence. However, the equitable distribution law requires courts to distribute property equitably between the parties “considering the circumstances of the case and of the respective parties”. Courts are required to consider 13 defined factors and any other just and proper factors determined in the courts discretion.

Further, the defendant contends that the plaintiff did not show that the appreciation in value of her separate property actually constitutes separate property. The court, however, determined that it was the defendant’s burden to prove that the plaintiff’s separate property claim was actually marital.