Property division in a New York divorce

One of the most difficult parts of a divorce is determining how to divide up the marital property. From the family home to priceless antiques, many divorcing couples find themselves arguing over who gets to keep which assets. If the couple is unable to come to an agreement on their own, they will have to rely on a judge to handle the property division process.

Marital vs. separate property

Once all of the property has been identified, the court will determine whether each asset should be classified as a marital property and which assets should be classified as separate property. Only marital property will be subject to property division in a New York divorce.

• Separate property: Property solely owned by one spouse that was either brought into the marriage by that spouse or given to that spouse during the marriage. Examples of separate property may include inheritances, gifts or lawsuit settlements.
• Marital property: Asset or debt owned by both spouses that was acquired during the marriage. Examples of marital property may include the family home or vehicle.

If an asset starts out as separate property, it may become marital property if both spouses contribute to it over time. For example, if both spouses make car payments and pay for car repairs, a car that originally belonged to just one spouse may now belong to both.

Valuation

Once the marital property has been classified, the court will need to determine the fair market value of each marital asset on the date of separation. The value of a bank account is easy to determine but valuing other items may require the help of an appraiser or other expert.

Equitable distribution

Under the laws of equitable distribution, New York courts will divide the marital property fairly and equally. This is different from community property distribution laws where each spouse gets half of the marital property.

Equitable distribution laws allow courts to consider several factors when determining how to divide up the property in a divorce. Some factors courts may consider include:

• Length of the marriage
• Which spouse has custody of the children, if any
• Each spouse’s current and future financial status, including income levels and earning capacity
• Age and health of each spouse
• Marital debt
• Contributions each spouse made to the marriage (both financial and non-financial)

Even divorcing spouses who get along may have trouble coming up with a fair way to divide up their assets and debts. A family law attorney can help walk you through the property division process and help make sure you get what you really need and deserve.