Here in New York, we are what is known as an equitable distribution state. So what does that mean?
In theory, it means that marital property is distributed in a divorce in the fairest way possible for both sides. This does not mean, however, that it will be divided equally. Your Manhattan divorce lawyer and the courts will look at many different factors to determine what fair property division may look like.
Equitable Distribution Vs. Community Property, Which is Better?
Some states are community property states. This means that married spouses equally own all income and assets acquired during the marriage. In the case of divorce, all assets and debts acquired during the marriage are split equally.
In New York, we used to be a common-law property state. We now recognize equitable distribution laws when it comes to property division. This means that only those assets that were acquired during the marriage are considered marital property. These will be divided, not equally but in a way that considers a more fair distribution of property.
Any separate property or assets owned by one spouse prior to the marriage will not be subject to equitable distribution. Your Manhattan divorce attorney can help you understand which of your assets are considered separate property or marital property.
Factors Considered in Equitable Distribution
Under New York’s equitable distribution process, many different things will be considered by divorce lawyers and by the court in the distribution of property. These factors can be how long you were married, what your separate incomes are and what they may be into the future, the child custody and support arrangements, tax, and debt obligations, and if there are any extenuating financial issues.
Equitable distribution, under New York laws, will consider an extensive valuation of the couple’s marital property. This marital property includes
● The primary home
● Any other acquired property
● Stock, bonds, and other investments
● Retirement accounts
In valuing your marital property, lawyers and the New York courts will look at each of them, assessing when they were acquired and with what funds. Their value will be determined by what is fair market value at the current market. Any debt obligations or credits are also considered common property and will be factored into equitable distribution. An experienced equitable distribution lawyer in New York will also consider what assets each partner has a preference in keeping.
To help prevent some of these potential issues, some couples chose to hire a prenuptial agreement lawyer in NYC. If you are getting married soon, contact the law office of Juan Luciano today to discuss your options.
What Happens to a House in A Divorce?
You will first need to decide if the home is marital or separate property before you can divide it. This means that your house is marital property if it was purchased by you and your spouse after marriage. The court will then divide the house in an equitable manner. However, the property would still be separate if one spouse purchased it before the marriage was complete and did not place the other spouse’s name on the title.
The family home may also be considered a commingled property (or mixed property). This is when each spouse uses his or her own money (separate assets) to purchase the marital property. If your family home is a commingled asset, it can make the process more complicated. It is best to speak with a divorce attorney if you find yourself in this situation.
If a marital and separate property is commingled, the judge can combine separate property with marital property and divide it accordingly. After taking your individual contributions into account, the judge will divide marital property. Prenuptial and postnuptial agreements can protect you from your marital property becoming part of the marital estate.
Separate Property Vs. Marital Property in New York
Separate property that was owned or inherited by either spouse before the marriage, any compensation from a personal injury prior to the marriage, or any properties set out in a prenuptial agreement will not be considered marital property and will not be subject to the equitable distribution process.
That being said, however, separate property may have been converted into marital ones. For instance, if one spouse acquired property prior to the marriage and added the other partner’s name to the deed afterward, it now becomes marital property. Or if one spouse owned an investment property before marriage but the other helped pay for the mortgage and maintenance afterward, the concept of separate property can become a bit muddier and it may be considered marital property. It then may come down to the New York courts making important decisions about the division of these assets.
Yes, equitable distribution sounds complicated. And sometimes it is, depending on the couple. In most cases, however, a couple can reach an agreement, with assistance, in order to meet both party’s needs.
Skilled New York divorce lawyers help couples work amicably to split both their assets and their debts fairly. In the case where you can’t agree, your divorce lawyer should be an aggressive advocate for you.
If you have questions about equitable distribution laws in New York or are looking for a divorce attorney who can manage a cooperative strategy yet can aggressively represent you when it is called for, contact the law office of Juan Luciano Divorce Lawyer for a consultation.