When a couple is going through a divorce in New York, each partner generally keeps property acquired before the marriage, but everything else might be considered marital property. New York follows equitable distribution laws, so joint property is split between the two parties based on what the court deems fair.
Equitable property division occurs by determining the total value of the marital estate and giving each partner a percentage of the total. Each spouse does not automatically receive 50 percent of the estate because an equal division may not be fair.
The circumstances largely decide which partner gains possession of a home. If children are present in the home, then the primary caregiver usually receives it. Otherwise, one partner may request the house but generally has no more legal right to it than the other party. If there are no children and one spouse bought the house with separate funds, then this spouse has sole legal rights to the premises.
Property division can become more complicated when the lines between marital and separate assets blend. For example, if one partner asserts that a business is separate property but the other contributed funds or otherwise assisted with the improvement of the asset, this partner could be entitled to a percentage of the asset's value. If one person receives an inheritance and puts it in a shared bank account, this can make it joint property. Likewise, using marital assets to improve a house that only belongs to one person could make the property subject to equitable division.
Issues involving property division are often intense because both parties may believe they have a right to pets, a home, a business, retirement funds or stock. Individuals who are going through divorce may wish to consult with a family law attorney, as he or she can inform their client about the state's specific property division laws and represent their client in court.