Matrimonial and Family Law Blog

Sunday, April 30, 2017

How Do New York Judges Determine Equitable Distribution During Your Divorce?

Divorce is a painful and emotional journey for everyone involved. Issues such as child custody and property division only make the process even more difficult. With regard to property division, you want to safeguard the property you acquired before marriage and get your share of property acquired during the marriage, commensurate to all the work and effort you put into the marriage. Having an experienced New York equitable distribution lawyer on your side will help you get just that.

Dividing Marital Property in New York

The first thing you must know is that the courts do not automatically determine each person’s share of property after divorce. This duty first belongs to the divorcing partners. Together, they are given an opportunity to agree on how to split the property. The court only steps in when the two fail to decide on how to distribute the property. If the two agree on the division of part of the property but fail to agree on another part, the court will only step in to determine the division of the portion in contention.

Is All Property Subject to Division by the Courts During Divorce?

No. The court only divides marital property. Marital property is the property acquired in the course of marriage, regardless of whose name is on the title. It also includes any increase in value of property during marriage as a result of the contributions of a spouse. For example, if one person owned a home in Manhattan before marriage and, after marriage, his/her spouse renovated it such that its value increased, that incremental value is marital property.

Marital property does not include property owned separately by either spouse before marriage. It also does not include property gifted, inherited or awarded to either spouse alone during marriage.

Equitable Distribution – How Courts Divide Marital Property in Divorce

New York is an equitable distribution state. This means that courts are guided by the principle of equitable distribution when they are dividing marital property. This does not necessarily mean that courts will divide marital property equally (on a 50/50 basis). Quite the contrary. Courts can give one spouse a greater share of marital property than the other where it is deemed fair.

Here’s what New York judges consider in dividing marital property:

  • The duration of marriage
  • Each spouse’s income and property during and after the marriage. Property includes business interests, investments such as stocks and bonds, 401(k) plans and retirement plans.
  • Each spouse’s contribution to the marriage. If one spouse stayed at home to take care of the family, the court will consider that the same as monetary contribution.
  • Each spouse’s age and health.
  • Which spouse was awarded custody of the children. This is especially considered when determining who keeps the marital home.
  • Whether one spouse was granted spousal maintenance.
  • Each spouse’s potential future earnings or future financial conditions.
  • The liquidity of marital property. Cash in hand or in a bank can easily be divided whereas real estate can only be divided after sale.

What the Court Will Not Consider in Dividing Marital Property

The court will not look at factors such as one spouse’s adultery, domestic violence or involvement in criminal activities only in as far as these did not affect the couple’s finances. If these factors affected the couple’s finances, say one spouse had an alcohol or drug abuse problem that compelled him/her to pawn the couple’s household items or squander their savings, the court will consider that in dividing marital property.

Getting an equitable share of marital property should not be a privilege, it is your right and you should hire a New York divorce attorney to fight for it aggressively. Contact law office of Gassman Baiamonte Gruner ,P.C. today for a consultation.

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