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Rules for division of property during a divorce

New York residents know dividing property can be one of the most challenging aspects of divorce. However, with a thorough understanding of New York property division laws, property division issues can be resolved fairly and efficiently.

Separate and marital property

It is important to understand that not all property is subject to division during a divorce. Property that is acquired during the marriage is generally considered marital property, which is subject to division between the spouses. Marital property is any property that both spouses bring to the marriage. However, separate property, or property that is owned by only one of the spouses is generally not subject to division. Separate property includes the following:

  • Anything one spouse owned prior to the marriage on his or her own
  • Gifts or inheritance gained during the marriage in one spouse’s name only
  • Disability pensions

Separate property also includes items bought with proceeds from the sale of property owned by one spouse. Any proceeds from a personal injury claim are also considered separate property.

New York uses equitable division when dividing marital property. Equitable division means marital property is divided equitably, but not necessarily equally.

Equitable division means that debts and assets are divided in a fashion that a family court judge feels is fair based on a number of factors. Any subsequent increase in value on items brought into the marriage is also subject to equitable distribution, depending on the contributions of each spouse.

Factors used to divide debts and assets

New York courts use a number of factors when determining division of debts and assets, including:

  • The salary and assets of each spouse at the beginning of marriage
  • The age and health of each spouse
  • The length of the marriage
  • The future financial status of each spouse
  • The tax consequences of division

A marriage of 20 years or more is considered a long-term marriage, and courts try to equally split property. For marriages of a few years or less, the goal is to put each spouse back in the position they were in before the marriage.

If children are involved, the marriage is generally treated as a long-term marriage with equal asset division. The court also examines the expenses involved for the parent in charge of maintaining the marital home.

The court also looks at any contributions one spouse makes to the other to assist with acquiring marital property. For instance, if one spouse works while the other stays home and takes care of children, the court considers the services of each spouse as both wage-earner and homemaker. A spouse’s contribution to the career potential of the other may also be considered.

Division of the marital home and retirement funds

Equity in a marital home is usually divided equally, with the custodial parent being granted possession of the home. The court will examine how long the children resided at the residence, the living expenses associated with maintaining the residence and any other appropriate and available housing.

New York law states that all retirement plans considered marital property are subject to equitable distribution. The courts use a special formula to calculate the split of retirement benefits acquired during the marriage. When dividing retirement benefits, the judge must sign a specific order in accordance with a variety of rules.

An individual going through a divorce can benefit from speaking to an experienced family law attorney. The attorney can provide valuable guidance and assist with obtaining a fair and equitable property division agreement.

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