Division of property is one of the most consequential parts of the divorce process. If you are considering filing for a divorce in New York, it’s essential to understand how property is divided so that you can manage your expectations. This article discusses the crucial aspects of division of marital property in New York.
Divorcing couples have the option of settling division of marital property out of court. In that case, the family court will order division of the property as per the settlement submitted by the couple. If the parties are unable to reach a consensus out of court, the formula of division of the property will be determined by the court in accordance with the applicable law.
Ney York distribution of property law
The law governing the division of marital property varies from state to state. New York follows an equitable distribution marital property regime as opposed to a community property regime. What is the difference? In equitable distribution, the ultimate goal is to split marital property fairly, not necessarily evenly. Further, equitable distribution does not take marital misconduct and fault into consideration. In community property regime, each party gets half of the marital property.
In equitable distribution states such as New York, the court considers several factors to make the distribution of property fair. It all depends on how your New York property division lawyer argues out the case. It pays off to have a lawyer who will defend your interests aggressively. It’s worth noting that only marital property is distributed. The court will, therefore, have to separate marital property from private property first.
Marital property is property earned or acquired during the marriage, regardless of whose name is on the title deed. Simple as that sounds, it’s not uncommon to find attorneys arguing on whether a certain property should be treated as marital property or separate property. Generally, separate property is the property that belonged to each party before marriage. Some categories of property obtained during the marriage may also be treated as separate property. These categories include gifts, personal injury compensation, and inheritance. If separate property acquired before marriage appreciates during the marriage, the value gained is treated as marital property.
Factors considered when dividing marital property
The following are some of the factors considered when dividing marital property equitably between divorcing parties.
- Length of the marriage
- Age and health of each party
- The effect of the divorce on health insurance benefits
- The liquidity of the marital property
- Special needs of the custodial parent. For example, the custodial parent is more likely to be awarded the marital residence
- The effect of the divorce on the pension and inheritance rights of each party
- The probable financial future of each party
- Any wasteful disposal of property by the parties
- Any past transfer of marital property without fair consideration
- The tax burden falling on each party after the division of the marital property
These factors are not fixed; depending on how the attorneys present the case, the court may consider any reason that it deems just. From the factors listed above, there are two points worth noting: wasteful disposal of property and transfer of property without fair consideration. Some unscrupulous partners will start wasting or transferring marital property in anticipation of the divorce. If your partner does that, and you prove it during the divorce proceedings, the court will compensate you accordingly when dividing marital property.
Some assets are not divisible between two parties. For example, how can a business interest be divided? When distributing such assets, the court may order one party to make a specified payment to the other in order to balance the distribution.
How can NYC property division lawyers help you get a fair deal?
Division of property is a complex process with a lot of quarreling points, right from debating what property should be considered marital property to the actual division of the property. If you hire an accomplished property division attorney, you increase the chances of getting a fair deal considerably. As you may have noted, the outcome you get could be down to the number of issues your attorney draws the attention of the court to.
The role of NYC property division attorneys is not limited to courtroom battles; there are many more issues that these divorce attorneys could help you with. For example, between an out-of-court settlement and a court determination, which route gives you a better deal? A good lawyer will advise you on the cost-benefit implications of every step you take in the divorce process. In the past, people have spent more money on legal expenses than the value of the property they acquire in the end. With the help of a skilled lawyer, you will avoid such terrible mistakes.