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One of the more complex and controversial issues in the equitable distribution arena is the allocation of marital and separate property components of assets that contain both categories of property. A disability benefit payment, sometimes derived from employer-sponsored plans, sometimes from private insurance policies, and sometimes from exceptional sources, is one such hybrid asset. Recently, the Appellate Division, Second Department, in an opinion by Associate Justice Robert A. Spolzino, in Howe v. Howe,1 addressed two important issues pertaining to disability benefits: (1) the burden of proof when allocating between deferred compensation and disability payments derived from an employer-sponsored plan; and (2) the classification of the economic elements of an award from the September 11th Victim Compensation Fund.

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