In Howe v. Howe, 886 N.Y.S.2d 722 (2d Dept., 2009), the Appellate Division, in two discrete rulings, simultaneously amplified and upset the equilibrium of the equitable distribution universe. The first ruling dramatically relaxed the strict burden of proof upon the party asserting a separate property claim, to wit, the failure to proffer independent expert testimony or evidence was not deemed fatal to the application. Next, it reached the troublesome conclusion that the Legislature intended to exclude compensation for lost earnings arising from a personal injury claim, under Domestic Relations Law (DRL) §236B(1)(d)(2), from the marital estate.

The Parties’ Claims

The husband, a New York City firefighter, was disabled as a first responder following the Sept. 11, 2001 tragedy. In addition to retiring with a disability pension, he received an award from the September 11th Victim Compensation Fund (Fund). The husband contended that a component of the disability pension represented his separate property for pain and suffering ((DRL §236B(1)(d)(2)). The burden to distinguish the separate property component from the marital component (compensation for lost income) rests upon the party asserting the separate property claim.1 Failing to meet his burden, the trial court distributed the entire pension as marital property. The husband argued that, his failed burden notwithstanding, the plan administrator could make the distinction.