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Matrimonial and Family Law Blog

Tuesday, December 17, 2019

Is New York a 50/50 Divorce State?

Property division is one of the many issues that couples might disagree about when they are getting divorced. Some states required couples to divide assets equally while other states adopt an equitable distribution theory of property division. If you are considering a divorce, a New York family law lawyer can explain your rights and your options for ensuring a fair and just property division in your divorce.

Is New York a Community Property State?

States like California and Texas have community property laws. In community property states, it is presumed that spouses own marital property equally, so marital property should be split equally during a divorce. The community property laws can vary slightly by state, and the division could change depending on specific laws and circumstances.

New York is not a community property state. New York’s property division laws in a divorce are based on equitable distribution.

What Is Equitable Distribution?

In New York, marital property is divided according to the state’s equitable distribution laws. Under equitable distribution, marital property is not necessarily split between the spouse equally. The property is divided between the spouses equitably or fairly. Depending on the case, “fair” may mean a 50-50 split. However, in other cases, “fair” may mean a 60-40 or 70-30 split.

The court considers numerous factors in determining what is fair for property division in a divorce action. Factors considered by judges for equitable distribution of marital property include, but are not limited to:

  • The length of the marriage
  • The health, age, and earning potential of both spouses
  • The resources, including property and income, of both spouses
  • An award or denial of spousal support
  • The non-financial contributions of each spouse during the marriage
  • Whether a spouse intentionally disposed of or wasted assets before or during the divorce proceeding
  • The wishes of both spouses regarding certain assets
  • The nature of the assets to be divided, including the liquidity of the assets
  • Child custody arrangements

Judges typically do not consider marital misconduct, such as adultery or abuse, as a factor in determining equitable distribution of property. However, if the misconduct directly impacted the couple’s finances, the judge may take the actions into considering when dividing marital property.

What Is Marital Property?

Only marital property is subject to equitable distribution in New York divorces. Marital property is typically defined as property acquired during the marriage. Property that was acquired before the marriage, inherited during the marriage, received as a gift, or intended as compensation for a personal injury is typically considered separate property. Separate property is not subject to equitable distribution.

However, separate property can become marital property in some cases. For instance, if the separate property is commingled with marital assets or used to improve marital assets, the property could be subject to equitable distribution.

Disputes regarding the nature of an asset are common in property division cases. The division of retirement accounts is another difficult issue during a divorce.

Discuss Your Case with an Experienced New York Divorce Attorney

Property division disputes can lead to costly litigation. An experienced New York divorce attorney can explain your options and help you decide what is best for your long-term goals and future. Our divorce lawyers are talented negotiators and trial attorneys, so you can trust your best interests are protected inside and outside of the courtroom. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today.


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