FAQs about divorce and equitable distribution in New York

divor

Find out more about the classification and division of marital and separate property by judges during a divorce.

When a couple file for divorce in New York, courts split property fairly, which occasionally leads to an equal property division. Instead, a judge’s assessment of what is fair in light of what each spouse contributed to the marriage and what each will need to go ahead serves as the foundation for an equitable property allocation.

Equitable Distribution: What Is It?

When a married couple files for divorce, one technique of distributing their assets is called equitable distribution. New York was a “common law property” state before the adoption of equitable distribution, which meant that the court divided the assets owned by either spouse in the divorce according to who held the title. If the title only listed the names of one spouse, that spouse was entitled to the property.

The state of New York presently practices equitable distribution. The court must distribute the marital estate fairly or equally when a spouse petition for divorce. However, being fair does not always entail dividing the couple’s assets equally. Instead, the judge will work to reach a just decision, taking into account:

● income and assets of each spouse at the time of marriage and at the time of divorce

● how long the marriage has lasted

● age and wellness of each spouse

● the need that the parent with custody reside in the house and utilize or possess its possessions

● the value of the pension, health insurance, and inheritance rights that each spouse will forfeit as a result of the divorce as of the divorce date.

● whether or if the court has granted spousal support (alimony)

● whether one spouse, based on their labor, money, or efforts as a spouse, parent, wage earner or homemaker, including their contributions to the other spouses’ earning potential, has an equitable claim to marital property to which they do not have a title (by, for example, working to put the other spouse through school)

● the nature of all marital property, whether it is liquid or not.

● the potential financial situation of either partner in the future

● the difficulty of valuing the component or stake in the business, corporation, or profession whether it is a part of the marital property and if it would be preferable to keep it intact, free from claims or interference from the other spouse.

● the spouses’ respective tax repercussions.

● whether either partner has wastefully spent the assets of the marriage.

● whether either of the parties has improperly transferred or encumbered marital property while contemplating divorce, and

● any other element that the court explicitly determines deserves consideration.

Which Assets Are Affected by Equitable Distribution?

The courts in New York merely split the marital estate; spouses retain their possessions.

All possessions acquired by one or both spouses during the marriage are considered marital property, regardless of who made the purchase. Marital property examples include:

● the earnings of each spouse during the marriage

● the home obtained from either spouse’s income

● the home the couple bought while they were still married (such as a house or car)

● each spouse’s retirement benefits accrued throughout the marriage, and

● the increase in the value of a couple’s assets during their marriage.

Most of the time, divorced couples can agree on property allocation that satisfies the requirements of both spouses. The division of assets and debt is a topic on which the courts urge couples to collaborate.

Definition of Separate Property

When a couple of divorces, the courts do not distribute their separate property. Instead, each couple keeps their independent property—with the exception of any value increases to which one spouse may have contributed. Included in the separate property are:

● property that either spouse owned before the union

● property that either spouse, aside from the other spouse, got as a gift or inheritance on their own

● reparation for either spouse’s injury

● every piece of the property described as independent property in a legally binding prenuptial agreement or other written contract, and

● property gained through the sale of separate property or its subsequent appreciation unless the latter was influenced in part by the labor or contributions of the other spouse.

Is a business or professional practice may be distributed fairly?

Yes. The court will split “property” in a divorce using equitable distribution. This “property” includes businesses, professional practices, and increased earning potential owing to obtaining a vocation, professional license, educational degree, profession, or license. As was previously said, it may be difficult or undesirable to split interests in a firm or job.

The actual business or practice will normally be awarded to the spouse managing it in this case, and the other spouse will be given other property to make up the deficit.

In a divorce in New York, how is property divided?

Most of the time, divorced couples can agree on property allocation that satisfies the requirements of both spouses. The division of assets and debt is a topic on which the courts urge couples to collaborate. A settlement agreement will often be approved by the court if it is equitable to both parties.

The court will decide whether each item of property or debt falls under the “marital” or “separate” categories and will then divide the estate using the aforementioned criteria if you and your spouse are unable to agree on how to divide marital assets. The court must abide by the terms of a prenuptial agreement if the couple signed one before getting married.

Before asking the court to decide for you, you can ask for assistance from a mediator or arbitrator if you’d want to arrange a property settlement with your spouse.

Important Resources

#divorce #nyc #separation #lawyer