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“Equitable” versus “Equal” in Divorce Cases

Posted by David J. Kavanaugh | Dec 03, 2018 | 0 Comments

In divorce cases in New York, the parties (or the court if the parties cannot agree) divide the couples' assets. Assets can include the following.

  • Real property, including the family home, vacation cottages, and timeshares
  • Cash accounts
  • Stocks and bonds
  • Stock options
  • Retirement accounts
  • Cars
  • Boats
  • Jewelry
  • Art
  • Antiques
  • Collections, such as gun collections and stamp collections
  • Normal household goods
  • Any other items the couple owns

Many people enter divorce proceedings under the impression the assets will simply be divided in half. But this is not the case. In New York, the law requires courts to divide marital property equitably rather than equally. There are many factors that can impact how property is divided. However, one factor that should not be overlooked is how family decisions may impact a party's ability to earn going forward.

When One Parent Stays Home

In many families, one parent stays home with the children. Sometimes the family decides one parent will stay home for a few years, other times, the family commits to a permanent stay-at-home parent. Many families believe the decision to stay home has lasting positive impacts on the children. However, when a person exits the workforce, even if only part-time, this naturally reduces the size of their personal individual retirement and deferred compensation accounts. It also limits their ability to advance in the workplace at the same pace as their spouse who has an uninterrupted, full-time work history.

The law takes this into account when deciding how to equitably (not equally) divide the marital assets.

Factors a Court Will Consider

There are several factors the court will consider when determining how to divide the assets of the marriage, including the length of the marriage, the earning power of each spouse, whether the custodial parent needs to live in the marital residence or use the household contents for the benefit of the children, whether one spouse contributed to the education of the other spouse, the probable future financial circumstances of each party, and other factors the court finds fair in determining the equitable distribution of assets.

Are You Considering Divorce?

If you are considering divorce, or if your spouse has notified you of their intention to pursue a divorce, you need an attorney experienced in family law on your side, fighting for you. David Kavanaugh focuses his practice on matrimonial and family law. Call today at 518-283-3000 to schedule a consultation. Together we can determine an approach to divorce that works for you and your family. At Frost & Kavanaugh, we provide legal services at reasonable prices. We look forward to working with you.

About the Author

David J. Kavanaugh

Dave graduated from Siena College in 1986 with a B.A. in Political Science, and from Western New England School of Law in 1991 where he received his law degree.  He worked as an Albany County Probation Officer between college graduation and his entry into law school. Dave was admitted to practic...


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