Of the many issues with which divorcing couples must grapple when attempting to dissolve their marriages, how marital assets will be divided is amongst the most difficult. This is partly due to the fact that a property settlement will only be ordered after a thorough assessment of a couple’s financial holdings and then the categorization of those assets as either marital property or separate property has been conducted. To ensure that the property division process is completed as smoothly and as quickly as possible during your own divorce, please contact one of our experienced New York property division lawyers for assistance.
Is New York a Community Property State?
There are two basic theories of property division with which divorcing couples must comply. For instance, some states abide by a community property theory of property division, which means that courts presume that spouses own marital property equally and so must share those assets equally upon divorce. New York, however, is not a community property state, but instead adheres to the rule of equitable distribution, which means that divorcing spouses must divide their marital property in an equitable way. It’s important to note that unlike the community property theory of division, this does not require a 50/50 split of the parties’ assets, but only a division that is fair to both spouses.
Equitable Distribution Factors
Courts consider a wide range of factors when determining what type of property division agreement will qualify as fair, including:
- The length of the marriage;
- The health and ages of the parties;
- Both parties’ resources, including their access to separate property and income;
- The parties’ training, education, and future earning potential;
- Any non-financial contributions made by either spouse during the marriage;
- The nature of the assets to be divided; and
- Whether the couple shares custody of any minor children.
Although judges rarely consider the misconduct of the parties when making property division awards, they will take into account whether the misconduct of one spouse directly impacted the couple’s finances. If, for instance, one spouse is accused of infidelity and spent a significant amount of the couple’s assets on his or her romantic partner, the court could be willing to award the wronged spouse a greater portion of the couple’s shared assets.
Once these factors have been assessed, the court will determine what type of division of marital property is fair and equitable. In some cases, this may mean splitting assets relatively equally, while in others it could mean granting one spouse a greater portion of a specific non-liquid asset.
What is the Difference Between Marital and Separate Property?
Divorcing couples are only required to divide assets that qualify as marital, which means that they were acquired during the marriage by either spouse, with the exception of:
- Property that was inherited by one spouse during the marriage;
- Property described as separate property by written agreement, such as a premarital or postnuptial agreement;
- Assets that were given as a gift during the marriage; or
- Compensation awarded in a personal injury lawsuit.
Aside from these types of property, assets that were acquired before the marriage took place are also considered separate property and will remain in the sole possession of the original owner. It is possible, however, for separate property to become marital property through the commingling of separate and marital assets. If, for example, one spouse inherited funds during marriage and placed those funds in a joint account, those assets will qualify as marital. In fact, even if separate property is used to improve marital assets, the property could become subject to equitable division upon divorce.
Because much of the property division process relies on whether an asset qualifies as marital or separate in nature, the proper categorization of assets is a critical part of the divorce process. For this reason, divorcing couples are usually encouraged to retain an experienced divorce lawyer who can help them build a strong divorce team made up of financial advisors and accountants who can properly track down and value the parties’ assets, thereby ensuring a fair division.
Discuss Your Case with an Experienced New York Divorce Lawyer
Disputes over property division can lead to costly and time-consuming litigation. Contact The Mandel Law Firm at (646) 770-3868 today to speak with a skilled divorce attorney about ensuring that your own divorce proceedings are resolved with as little conflict and expense as possible. You can also reach a member of our legal team via online message at [email protected] or by completing one of our contact forms.