If you are contemplating or in the midst of a divorce in the state of New York, you’re probably wondering how NYC’s family court will divide marital assets between you and your soon-to-be ex-spouse. The court looks at everything couples own and they label every item as either separate or marital property. Determining what is (and isn’t) a marital asset can be quite complex, and it makes a great deal of sense to ask a local property division lawyer for help figuring things out. Here, you’ll learn more about New York’s equitable distribution laws.
Marital Assets: What Are They?
The easiest definition of a marital asset is anything that’s owned by one or both spouses and is not considered separate property. Money and some other assets acquired by either spouse during a marriage are regarded as marital property unless you or the other spouse convince the judge that it should be separate. Below are a few common marital assets:
The state of New York is a bit unique in that it considers certain business permits and educational degrees as part of the marital estate if they were obtained during a marriage.
What is Considered Separate Property?
If you received or owned something before getting married, it is considered separate property, whether it’s personal or real property. Inheritances and gifts from someone other than your spouse are held separately, even if they were acquired during a marriage. If separate personal property was exchanged during the marriage, the new assets are also separate. For instance, if you had a car while you were still single, traded it in during the marriage and used your separate funds to make up the difference, the new vehicle is considered separate property.
This is a way to fairly divide marital property during a divorce. Before the state of New York adopted equitable distribution laws, it was a common-law property state. Under the previous system, each spouse’s property was distributed according to how the title was held. For example, if a car was in your name only, you received it in the divorce decree.
Marital and Separate Property: Why it Really Matters
The family court will give each spouse his or her separate property before dividing marital assets. Under New York’s laws, divorce court judges don’t automatically give each spouse half of the marital estate. Rather, the judge must consider various factors when determining an equitable or fair distribution of marital assets. State law allows spouses to create written agreements stating what’s separate property and what’s marital property. However, you should be aware that commingling or mixing marital and separate property can turn an asset from separate to shared, unless it’s real estate.
Why It’s Important to Consult a Lawyer for Matters of Property Division
If you’re in the middle of a divorce or you’re considering getting one, you should put your case in the hands of a knowledgeable divorce and property division lawyer in NYC. We invite you to contact us by phone or email to set up a no-obligation consultation and discuss your legal options.
New York is classified as a marital property state. In the event of a divorce, the marital property of the spouses will be divided. In most cases, marital property is personal or real property that was attained by either spouse during the marriage. In addition, it can also include the income of each party during the marriage and retirement benefits.
What is Separate Property?
In addition to being classified as a marital property state, New York is also classified as an equitable distribution state. Basically, property of spouses will be equally divided during a divorce. A judge will look at what each spouse has contributed to the marriage as well as what each spouse will need after the divorce concludes. It is important to note that division of assets doesn’t have to be fair to be equitable. For instance, when it comes to debt, it could be treated the same as intangible property.
The Division of Assets
A judge must determine what is separate and what is marital property before he or she makes a determination on debts and assets. After this has been determined, a judge will then decide who is responsible for debt or ownership of property. Some factors a judge may take into consideration include how long the marriage lasted, the income of each spouse, physical and mental health of each spouse, and their potential to earn income after the divorce. In addition, a judge will also look at how the spouses contributed to attaining property. New York is similar to other states when it comes to your home and children, and you will most likely be able to stay in your residence until your children are no longer minors.
Ownership and Division of Businesses
When it involves businesses or professional practices, they will probably be divided equally. However, this can pose difficulty because if one spouse owned his or her business before the marriage, and there was appreciation during the marriage, it would typically be considered marital property. This would be if the other spouse made contributions that resulted in the appreciation, which may include staying at home to care for the children so the other spouse can run the business.
The Dissipation of Marital Assets
When one spouse is accused of wasting the couples assets, the court will probably determine that this is an issue with the exception that the other spouse knew what was happening. This may include one spouse taking costly vacations or making bad investments without informing the other spouse of his or her actions.
Spousal maintenance, which is also referred to as alimony, is payment from one spouse to another during or after a divorce. Temporary maintenance is issued during divorce proceedings, and permanent maintenance is paid after the divorce. Child support is not included as part of spousal maintenance. The length of payment for permanent maintenance could be based on various factors. For example, one spouse may be issued permanent maintenance until he or she lives with another partner or remarries. There are some instances where spousal maintenance payments will be made until one spouse dies. There are guidelines that the court will use to determine how much maintenance will be paid to the other spouse and for how long.
If one spouse presents valid evidence that involves tax consequences after a property distribution, a judge is required to examine the possible consequences. When property is sold and net proceeds are equally shared, a judge will more than likely mandate that tax consequences be equally divided.
There can be assets that are difficult to value. These may include college degrees, professional licenses, investments, and hedge funds. As a result, it can be hard to distribute these assets without the help of an experienced attorney.
If you are going through a divorce, it is imperative to seek an experienced divorce attorney for guidance on the best course of action. Divorce can be stressful on every person involved, including children, and an experienced divorce attorney can help relieve some of that burden because he or she understands the divorce process. Contact our law office today to schedule a consultation.