One of the many sources of difficulty in divorce cases is the division of property. Property division is often misunderstood. Below is a basic discussion offered as a starting point for property division in a divorce.
UNDERSTANDING “MARITAL PROPERTY”
In New York, “marital property” refers to property acquired during the marriage, by either or both spouses. Even if the property is held in only one person’s name, with only certain exceptions, the property is considered “marital property” if purchased or acquired during the marriage.
UNDERSTANDING “NON-MARITAL PROPERTY”
Non-marital property, referred to in New York as “separate property,” is property acquired by either party before the marriage, as well as property inherited or gifted to one of the parties during the marriage (but not a gift from one spouse to the other), and a few other narrow exceptions.
DIVIDING PROPERTY
After property is classified as either marital or separate property (by agreement or by court order) the marital property must be divided. As a starting point, all marital property is subject to division, regardless of whose name the property is in, or who paid for the property. Next, according to New York law, the property must be divided equitably. This is not the same as dividing the property equally.
For example, imagine one spouse owns and operates a business. While the courts could order the couple to split the business, or continue to run the business together, or even sell the business and split the profits, these approaches often fail on many levels. Instead, the courts may award the business to one spouse. In exchange, the other spouse could receive a larger share of the remaining assets or, the spouse who was awarded the business would be ordered to “buy out” the other spouse’s share in accordance with a previously determined appraisal/valuation amount.
FACTORS COURTS CONSIDER
The courts consider factors pursuant to New York law. These factors include, but are not limited to the following.
- The income and property at the time of the marriage and at the time the divorce was initiated.
- The length of the marriage.
- The health and age of the parties.
- Whether one parent needs to occupy the marital home and use the household effects while raising the children.
- Whether one party will lose inheritance rights or pension rights.
- Loss of health insurance benefits.
- Maintenance (alimony) awards.
- Future financial circumstances of both parties.
This is an incomplete list offered to illustrate many of the different factors the courts consider when distributing assets of the marriage.
IF YOU ARE FACING DIVORCE OR SEPARATION
If you are facing divorce or separation from your spouse, you need a matrimonial/family law attorney on your side who understands divorce law. At Frost & Kavanaugh, we have over twenty-five years of experience handling matrimonial and family law cases. From the newly married couple who realizes they made a mistake to the high asset divorce of a long-term marriage, we have the experience and insights needed to provide you comprehensive divorce representation.