Filing for a divorce in New York can undoubtedly be confusing and stressful. Besides the emotional challenges, there are numerous practical considerations that need attention. One of the primary concerns you may have is how your assets and property will be divided between you and your spouse. This is a critical issue in divorce proceedings, as it affects your financial stability and future.
Due to the significance of this matter, it is advisable for those considering a divorce in New York to consult with a reputable Manhattan divorce lawyer before making any decisions. At Juan Luciano Divorce Lawyer, we are well-versed in New York’s laws on asset division during a divorce. With our support, you can further understand the differences between equitable distribution state and community property state, and what legal steps you can take to protect your interests. Contact us today at (212) 537-5859 to schedule a consultation.
What is a Community Property State
Community property states have their own distinct regulations governing the ownership and distribution of assets and debts within a marriage. These states consider the majority of assets acquired or earned, as well as debts incurred during the marriage, as community property. This implies that both spouses share equal responsibility, regardless of who made the purchase or earned the income, or even if a loan was taken solely in one partner’s name. However, it is worth noting that the presence of a prenuptial agreement can modify these conditions.
In the event of a divorce, community property is typically divided equally, although there are exceptions to this rule. If one spouse passes away, the portion of community property belonging to the deceased spouse generally transfers to the surviving spouse, unless otherwise specified in a valid will.
While the division of community property often involves selling and distributing the proceeds, couples who can communicate effectively may choose a more personalized approach that better suits their circumstances. Furthermore, in states that follow community property laws, both partners typically share equal liability for any debts accumulated throughout the duration of their marriage, irrespective of which spouse initially accrued them.
Community property laws may seem unjust when an individual going through a divorce is required to relinquish half of their retirement earnings and savings to their ex-spouse. However, these laws can offer support to individuals who are financially dependent on their partners, especially stay-at-home parents without independent sources of income and savings.
What Is New York Marital Property Law?
Every divorce is different and the property distribution may depend on many factors. But the NYC courts have certain guidelines to follow making decisions on the distribution of marital property.
New York is a non-community property state. Like another dozen states in the USA, NY follows the theory of equitable distribution. And while each spouse owns the income they earn during the marriage as well as the right to manage the property in their name, during the divorce one doesn’t simply get 50 % of the assets.
What Is Equitable Distribution Of Marital Property?
The term “equitable distribution” means the property will be distributed fairly between the two spouses. To determine the fairness of distribution during the legal separation, the court will take into account the following factors:
- how long did the marriage last;
- each partner’s conduct during the marriage;
- the spouses’ health and age;
- the spouses’ occupations and incomes;
- the education, training, and skills of each spouse;
- the spouses’ estate and liabilities;
- the spouses’ likely financial needs;
- the spouses’ ability to acquire assets and income in the future.
The court will also take into consideration whether the divorcing couple has children.
Is A House Owned Before Marriage Marital Property In New York?
In New York divorce cases, distinguishing between separate and marital property is essential for asset division. According to New York State law, property obtained before marriage is typically classified as separate property, including real estate like a house owned by one spouse before the marriage.
Separate property is defined as assets each individual possesses before marriage and may include bank accounts, investments, or businesses. A pre-marriage house remains separate property throughout the marriage unless specific conditions occur that may alter its status.
However, separate property can become marital property when it is significantly mixed with marital assets, a process known as commingling. This can occur if the spouse who does not own the property helps with mortgage payments or maintenance, thereby increasing the property’s value. If the value of a house owned before the marriage rises due to the non-owner spouse’s efforts or financial contributions during the marriage, that increase in value may be treated as marital property.
Individuals facing divorce should be aware of legal distinctions to avoid unexpected outcomes in the equitable distribution process and safeguard their assets. Consulting an experienced Manhattan divorce lawyer who can clarify the intricacies of property division is essential for understanding the complexities involved in New York.
Dividing a House in a NY Divorce
To divide the family home, it is essential to first determine whether it is categorized as marital or separate property. If the home was jointly purchased by you and your spouse after your marriage, it is considered marital property, subject to equitable division by the court. However, if the house was bought by one spouse before marriage and not put in the other’s name, it is classified as separate property.
In some cases, the family home may be classified as commingled property, which occurs when both spouses use their own separate assets to pay for the marital property. This situation makes dividing the property more complicated. It is recommended to seek assistance from an experienced lawyer to navigate this process effectively.
If separate and marital properties are mixed, a judge may merge them and divide them equitably, taking into account each spouse’s contribution. To safeguard your property from being part of the marital estate, a prenuptial or postnuptial agreement can be useful.
Division of Debts in a New York Divorce
Most people consider how assets will be split when they are preparing to divorce. They usually try to think about things like who will keep the house, or if they will have a share in the pension. These are the questions that clients usually have in their minds. Often, people don’t know that debts accrued during the marriage, like assets, must be divided.
Debts that are tied to an asset, such as a mortgage or loan to purchase a car, often remain with the asset. Whoever is keeping the house or the car, in this case, will be in charge of paying it off. Other unassociated or unsecured debts, like credit card debts, must be shared between the spouses and hopefully discharged as part of the divorce decree.
In most cases, marital debts are those incurred during marriage by either spouse. They also constitute equal obligations. However, there is some room for deviation if one of the spouses incurs debts that are not marital. For example, secret purchases made during extramarital activity would be a classic example. This debt will likely be the only obligation for the guilty party.
It is important to speak with an experienced divorce lawyer when dealing with matters such as the division of debts. Having a skilled attorney may be able to help the client understand their roles and responsibilities when it comes to asset division.
| Type of Debt | Responsibility |
|---|---|
| Debts tied to an asset (e.g., mortgage) | Responsibility typically remains with the spouse keeping the asset |
| Unassociated or unsecured debts | Shared responsibility between both spouses, discharged as part of the divorce decree |
| Non-marital debts | Sole responsibility of the spouse who incurred the debt |
How Long Do You Have to Be Married to Get Half of Everything in NY?
In New York, dividing everything equally or 50/50 in a divorce is not as straightforward as many might think. When a marriage ends, the division of assets is governed by the principle of equitable distribution. This principle does not guarantee an equal split of assets; rather, it pursues a division that is considered fair based on a set of legal guidelines.
The state does not use a set duration of marriage to determine if a spouse is entitled to half of the marital assets. Instead, the courts look at numerous factors to decide what constitutes a fair distribution of property. These factors include the duration of the marriage, the income and property each spouse had at the beginning and end of the marriage, each spouse’s age and health, and the future financial prospects for both spouses. Additionally, considerations such as the needs of a custodial parent to maintain the family home are also taken into account.
Therefore, there is no automatic entitlement or specific marital duration after which a spouse can claim half of everything. The court’s goal is to achieve a fair outcome by examining the contributions and needs of both parties, rather than applying a rigid rule based solely on the length of the marriage. Engaging a Manhattan divorce lawyer can be invaluable to gathering and presenting essential details about your marriage and contributions, striving for the most favorable outcome possible.
What Is The Difference Between Separate And Marital Property?
To distribute the assets fairly the law requires determining the separate and marital property of the couple. To do that the court will study the financial documents of both spouses.
The equitable distribution law of New York defines “marital property” as all property gained by both spouses during the marriage. This includes the property held in the names of both spouses as well as the one in the name of one spouse. Such property will be distributed during the divorce process.
- The “separate property” which will not be distributed during the separation is the following:
- the property acquired before the marriage;
- the property acquired by will, devise, or as a gift from anyone besides the spouse;
- the assets acquired as compensation for the personal injury;
- the property acquired during the exchange of separate property or through an increase in value of that property
- the property which was described as separate property in a written agreement by both spouses.
The spouse claiming that a certain property or asset is a separate property should provide proof supporting the claim.
Attorney Juan Luciano is an experienced lawyer who has helped many clients with property division during a divorce, including the division of a family home. He may be able to help you with your case. Contact us today to schedule a consultation.
