For those who have never experienced divorce, it’s commonly thought that marital property is automatically divided in half between divorcing spouses. While assets are sometimes divided equally by happenstance, they are most often divided equitably in the eyes of a New York divorce court. The equitable distribution of property involves the careful consideration of a number of factors, including circumstances that occurred before and during marriage, and sometimes after the divorce.
Your cars, furniture, cash, bank accounts, advanced educational degrees, and other types of property are typically divided based on whether they were obtained before or during marriage. Marital property, or the marital estate, refers to property and money you acquired during the marriage, while your separate property involves any property, cash, and investments you made prior to marriage. There are certain exceptions—for example, if you bought a car during marriage and made a down payment with money from your separate bank account, then a judge will take your contribution into consideration. Similarly, if you owned a separate business and your spouse made contributions during marriage that increased its value, then you might not be able to treat your business strictly as separate property in divorce proceedings. Because you can’t simply “divide” and share a business, you will usually be awarded the actual business, but you will have to make up the difference to your former spouse.
When your own property is deemed separate, you will simply be allowed to keep it after the divorce. When marital and separate property are “commingled” or mixed, a judge may lump your separate property together with your marital property and divide it accordingly. A court will endeavor to take your individual contributions into account and fairly divide the marital property. A prenuptial or marital agreement can help protect your property from the get-go by excluding certain property from the marital estate.
The court considers several key factors when distributing the marital property. You will have to provide straightforward information like the age and health of each spouse, the duration of the marriage, and whether the court has already awarded alimony or “spousal maintenance.” A judge will also consider the income and property you each had when you married and when you filed for divorce; whether the parent with custody of children needs to live in the family home and use existing furniture; whether either of you will lose pension, health insurance, or inheritance rights as a result of the divorce, and many other factors. Some of these components are less concrete—for instance, a judge will consider whether one of you has wasted marital assets, and they will try to predict your future financial circumstances.
If you’re entering into divorce proceedings, you might be able to agree on how to divide your property with your former spouse. If you can’t agree and your share of the property is now left to the court’s best judgment, it pays to have a strong familiarity with the New York legal system. The law firm of Elizabeth Douglas can defend your interests and help you present a compelling argument before the court to ensure you receive the property to are fairly entitled to. Get in touch to discuss your unique circumstances.