Opinion
May 13, 1999
Appeal from the Supreme Court, New York County (Walter Tolub, J.).
The trial court properly found plaintiff husband's severance package to be marital property. The New York Domestic Relations Law defines marital property as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action" (Domestic Relations Law § 236 [B] [1] [c]; see also, DeJesus v. DeJesus, 90 N.Y.2d 643, 647; Hartog v. Hartog, 85 N.Y.2d 36, 49; Olivo v. Olivo, 82 N.Y.2d 202, 207), and, as this Court held in Hartog v. Hartog ( 194 A.D.2d 286, 293, mod on other grounds 85 N.Y.2d 36), "[s]everance and vested pension payments are a form of deferred compensation which are generally considered to be marital assets" (see also, DeJesus. v. DeJesus, 90 N.Y.2d, supra, at 647-648; Burns v. Burns, 84 N.Y.2d 369, 376; Richmond v. Richmond, 144 A.D.2d 549, 551; Nielsen v. Nielsen, 256 A.D.2d 1173).
Although plaintiff contends that he should not be required to pay maintenance in the event his severance pay is held to be a marital asset, the trial court, in determining maintenance, appropriately considered the payee spouse's reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors, and then, in the sound exercise of its discretion, established a fair and equitable maintenance award in the amount of $5,000 per month (see, Hartog v. Hartog, 85 N.Y.2d, supra, at 52; Summer v. Summer, 85 N.Y.2d 1014, 1016). While it is true that defendant was accorded half of the marital property and also collects disability and retirement benefits, she is, unlike plaintiff, completely without the capacity to earn any additional income, and requires the $5,000 per month in maintenance to be able to approach the predivorce standard of living.
Although the award of reasonable counsel fees is generally a matter within the sound discretion of the trial court (see, DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879), upon our evaluation of the equities of this case, the relative merits of the parties' positions and the parties' respective financial positions (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 590; Domestic Relations Law § 237 [a]), we conclude that defendant, who is unable to work, should not have been required to deplete her assets to the extent necessary to pay all of her attorneys' fees. Accordingly, plaintiff should be directed to contribute $75,000 toward payment of defendant's more than $100,000 in attorneys' fees.
We have considered the parties' remaining arguments for affirmative relief and find them unpersuasive.
Concur — Ellerin, P. J., Tom, Lerner, Buckley and Friedman, JJ.