call for a free consultation 212-300-5196

AS SEEN ON

Laws about marriage and divorce vary widely from state to state. State governments are in charge of specific rules about the division of property, spousal support payments, and child support payments. New York is a state that uses marital property. The only property that’s divided between the two parties is the marital property.

As a general rule, marital property includes everything that was acquired by either party when they were married. Even if only one name is on the title, it’s still marital property if it was acquired during the course of the marriage. Also included are the incomes of each spouse during the time they were married, retirement benefits accrued over the course of the marriage, and any appreciation of property that was purchased over the course of the marriage.

You may be surprised by the things that count as marital property. There have even been cases in which frequent flier miles have been divided during the divorce.

Separate Property

In a divorce proceeding, “separate” property refers to property that is owned by only one of the individuals. This property continues to be in the possession of the original owner, rather than being divided with the marital assets. Separate property includes the property either spouse had before being married. This also includes the appreciated value of the property.

The one exception is if, after the marriage, one spouse contributed financially to the value of the other spouse’s separate property. Any property that both spouses have a financial stake in becomes marital property.

Equitable Division

Like many states, New York requires equitable distribution of all marital property. Both parties need to receive a fair distribution of the property. This doesn’t always mean that the property is divided fifty-fifty, although many judges will rule that way.

When the court determines how property is divided, they’ll look at a number of different factors. One important factor is the amount that each party contributed to the assets. The judge will also take into account the financial needs of each party following the divorce.

When it comes to equitable division, debts are treated the same way that assets are. A judge will divide responsibility for the debts fairly among the parties based on their contribution and financial situation.

Marital or Separate?

A court needs to go through a number of different steps before it can allocate debts or assets to either party. The first step is to determine which property is separate versus marital. The judge will then decide which party bears responsibility for the debt or ownership of the asset.

There are a number of contributing factors that influence this decision. Rather than dividing everything completely evenly, they look at each case’s unique circumstances to make sure the results are fair. Contributing factors include each party’s income, the health of each party, each party’s financial circumstances, each party’s potential earnings, and the length of time the marriage lasted.

In addition, the court will ask questions about what specific contributions each party made when property was obtained. If you were a homemaker, your contributions will parallel any monetary contributions. For example, if you’ve been taking care of your home and raising your children, the court will likely allow you to keep the home. You can continue to raise your children in the same environment you did prior to the divorce.

Businesses

Sometimes marital property includes professional practices and businesses. These also fall under the equitable division law. With that said, they tend to be challenging to divide. The legal procedures vary depending on the circumstances. For example, a spouse might own a business prior to the marriage, but it may increase in value over the course of the marriage. The appreciation would count as marital property, but the overall value of the business would not.

Judges usually give ownership of practices or businesses to whichever party is most heavily involved. This only becomes complex if both parties jointly owned the practice or business and put in equal work.

Wasting Assets

In acrimonious divorces, spouses will sometimes waste assets to keep their ex from getting any of the money. Judges do take this into consideration when the action was taken without the other party’s consent. A common example is one spouse bringing their new paramour on an expensive vacation to drain the amount of money in the bank account.

No matter your specific circumstances, it’s important to get in touch with an experienced attorney who can advocate for you.

Request Free Consultation

Please fill out the form below to receive a free consultation, we will respond to your inquiry within 24-hours guaranteed.