Matrimonial and Family Law Blog

Monday, March 11, 2019

5 Things You Didn't Know About Equitable Distribution During Divorce

Issues related to equitable distribution in New York can be very confusing.  Some individuals only realize their assumptions about property division during a divorce were incorrect after they listen to the judge issue an order dividing assets. If you are unsure about the property division laws in New York, it might be beneficial to meet with a New York equitable distributions lawyer if you are contemplating a separation or divorce.

Five Things You Need to Know About Equitable Division in New York

1. Equitable Does Not Mean Equal

One of the most common misunderstandings about equitable distribution is that the parties must divide marital property equally. New York adopts an equitable distribution standard for divorce cases. If the parties cannot negotiate a property settlement agreement, the judge uses various factors to determine what is “equitable” or “fair” for the division of property between the spouses. In some cases, the division may be 50-50, but in other cases, equitable distribution could result in one spouse receiving a larger percentage of the property.

2. Separate Property Could Be Subject to Property Division

In most cases, separate property owned by one spouse is not included in the marital assets subject to property division. Examples of separate property include property owned before the marriage, inheritances, and some types of compensation for personal injury claims. Marital property is usually defined as property the couple acquires during marriage or property that does not fall within the definition of separate property.

Only marital property is included in equitable distribution. However, some circumstances could result in separate property becoming marital property. For instance, if a spouse deposits inheritance funds into a joint checking account for both spouses to use, the judge could determine the property is now a marital asset. Spouses with separate property may benefit from consulting with a New York divorce attorney to avoid property division issues in the future.

3. Equitable Division Also Applies to Marital Debts

Debts are also subject to equitable distribution.  Therefore, you could be responsible for some debts that your spouse incurred during your marriage. Again, the term equitable does not mean 50-50. A judge will review all factors in your case to determine what is equitable given your specific situation. 

4. Marital Misconduct is Not a Factor for Equitable Distribution

Judges use many factors when they consider dividing property between spouses. However, they do not typically consider marital misconduct as a factor in making their decision. An exception would be if the marital misconduct directly affected the couple’s finances adversely. 

5. A Judge May Consider Other Relevant Factors in an Equitable Distribution Case

A judge typically uses 13 different factors when deciding how to divide property between spouses in a divorce action. Very briefly, the 13 factors used for equitable distribution are:

  1. Income of the spouses
  2. Length of the marriage
  3. Need of a custodial parent to live in the marital home with minor children
  4. Loss of inheritance and pension rights because of the divorce
  5. Loss of health insurance because of divorce
  6. Award of support or maintenance
  7. Whether a spouse contributed to property that he or she did not have title to or own
  8. Non-liquid or liquid character of all marital property
  9. Financial futures of each spouse
  10. The difficulty or impossibility of determining the value of certain assets
  11. Tax consequences for each spouse
  12. Whether a spouse wasted or used up any assets during the separation
  13. Whether a spouse disposed of or transferred martial property at an amount less than the fair market value in anticipation of a divorce

There is also a fourteenth factor that a judge may use, which is “any other factor which the court shall expressly find to be just and proper.” This clause gives a judge wide discretion to consider other factors that the judge rules to be relevant to an equitable division of property and debts between the parties. 

Contact a New York Divorce Attorney

If you have questions about equitable distribution laws in New York, contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today about your marital property.

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