New York Divorce Property Division
A divorce does more than end your marriage. It also unwinds a couple’s finances. In particular, spouses need to decide who will get what property they have acquired together and who will pay the debts. New York law does not require a 50/50 split of the property you have acquired together. Instead, the law requires a judge to divide the property “equitably,” meaning fairly. Sometimes, a 50/50 split will be fair. In other situations, it might be fair for one spouse to get more of the marital property.
Because judges have discretion, you need an aggressive divorce attorney in your corner who can get you what is fair. Without an attorney, you might end up with less property than you need—and once the judge signs the divorce order, it will be hard to overturn it.
Protecting What’s Yours
Property division is sometimes overlooked in a divorce. Instead, warring couples often focus mostly on the children. But making sure you get an adequate amount of marital property is vital as you step out on your own. The fact is that setting up a home on one income is often more expensive than when you could split bills with another person. Many clients end up surprised at how expensive it is to support themselves. Without proper planning, they will not have the assets they need.
In New York, a judge will look at the assets you own and determine whether they are marital property, which must be divided, or separate property, which you can take when you exit the marriage. Below, we will explain what a judge will look for.
Couples must divide their marital property. Under New York law, marital property is defined broadly. It usually includes all property that the couple acquired jointly or individually during the marriage, and can include:
- The family home
- Investment real estate
- Household furnishings
- Stocks and bonds
- Investment accounts
- Retirement accounts
- Business interests
It does not matter for purposes of determining what is a marital property whose name is on the legal documents. For example, you might have put only your husband’s name on the deed when you bought the family home. However, this does not make the home separate property in a divorce. Instead, it is marital property if you bought it while married.
If you were a spouse who did not pay close attention to finances during a marriage, then you need to take affirmative steps to make sure you uncover all marital assets during the divorce. For example, your spouse might have bought property in a different state, or he could have opened investment accounts you are unaware of. In most cases, these assets will be marital property if they were purchased or opened while you were married. However, your spouse might have an incentive to hide these assets.
An experienced property division lawyer can uncover assets by reviewing tax return information and other bank accounts. It is vital that you uncover everything so that you receive what you are entitled to. Your spouse can be sanctioned for trying to hide assets, but every year we see a greedy spouse try to hide something.
Separate property generally includes the property that you acquired before marriage. It can also include property you acquired after starting a divorce proceeding. For example, if you bought your vehicle before getting married, then it is probably your separate property when you divorce. If you decide to buy a condo after filing for divorce, it is probably also your separate property.
Separate property can also include some property that you acquired while married, such as:
- Inheritances left only to you (and not jointly with your spouse)
- A personal injury settlement or jury award
- A gift from a third party that was intended for only one spouse
A couple might also have signed a prenuptial agreement that defines what property will be considered separate property during a divorce. So long as the parties entered the agreement voluntarily, it will control whether a judge distributes it during divorce.
Sometimes, it is not always clear whether a property is separate or marital. For example, a rental property you purchased while single might earn rental income while you are married. The earned income could qualify as marital property and might need to be divided.
How a Court Divides Property
Couples can agree to divide marital property themselves. Absent an agreement, a judge will make an equitable division after first identifying the marital property and then properly valuing it. Ultimately, a judge will base a decision on how to divide property using the following factors:
- Each spouse’s income at the time of marriage and divorce
- Each spouse’s future financial circumstances
- The marriage’s duration
- The age and health of both spouses
- Whether one spouse will lose health insurance benefits
- Whether the spouse with custody of minor children must live in the marital home
- Loss of pension rights or inheritance because of divorce
- Whether a spouse is receiving spousal maintenance or support
- Whether one spouse helped the other earn a degree or otherwise increase their ability to earn income
- Tax consequences to each party
- Any other factor that the judge finds relevant
No one-factor controls. Instead, a judge considers all factors to come up with a distribution that is fair. If you have questions about whether you will receive a sufficient amount of property at divorce, you should meet with a skilled New York property division attorney, who will review your case.
Contact an Experienced Attorney for your Property Division
Identifying and valuing marital property is a complicated task, and an experienced attorney is an invaluable asset. At the Levoritz Law Firm, we have represented many husbands and wives who trying to figure out what their financial position will be when they finally emerge from divorce court.
For help with your divorce, please contact us today. One of our New York property division lawyers will meet with you for a confidential consultation, which you can schedule by calling 718-942-4004 or submitting an online message.