So many I my clients have told me, “I get half of everything right?”, or “Everything we own is community property”. Well this is an often mistake that people believe in New York. New York is an equitable distribution state when dividing property during divorce. What does that mean? It means that all marital property will be distributed equitably, which is a fair division of all the assets and debts acquired during the marriage. So to figure this out, we have to decide whether specific possessions or assets qualify as separate or marital property. This will determine how property will be divided during a divorce.
What is considered separate property?
• Property either spouse acquired before the marriage began
• Property received individually by a spouse as a gift or inheritance
• Compensation for personal injuries
• Property which has been designated as separate property in a legal prenuptial agreement or written contract
• Property obtained from the proceeds or appreciation in value of separate property
If something is qualified as separate property it is not subject to division during the couple’s divorce. You are entitled to keep your own separate property unless the property has increased in value due to a spouse’s contributions.
What is considered marital property?
• The incomes of both spouses
• Any property purchased with the parties income
• Any property purchased during the marriage, such as a home or vehicle
• The appreciation of all marital property during the marriage
• The retirement benefits earned by each spouse during the marriage
Marital property includes any property obtained by both or either spouse during their marriage. This property is subject to division during the divorce.
Once the property has been designated as separate or marital then the fair distribution can occur. Various factors are taken into consideration when distributing assets including the incomes of the parties prior to and at the beginning of the divorce, duration of the marriage, need to occupy the marital home, loss of inheritance or pension rights, maintenance awards, future financial circumstances of each spouse, tax consequences, dissipation of assets, contributions as a non-wage earner to the income of the spouse and home, and the character of the property itself.
Mediation is a the best way to decide together the most “equitable” way to divide the assets fairly and creatively so that it works for both parties involved.
Contact Divorce Mediation & Family Services of New York for more information
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