Property Division in Divorces in New York
WHAT IS EQUITABLE DISTRIBUTION? The Domestic Relations Law in New York generally determines how a judge will split up a couple’s property. Legally, a judge must split property in an “equitable” fashion. This term should not be confused with an equal fashion. For example, if a couple accumulated $100,000 of marital property during a marriage, do not assume that each partner will get half. All things being equal, the property would be split in half. However, all things are rarely equal. For example, it may be equitable, where a woman with only a high school education raised five children for twenty years, and enabled her husband to obtain an M.D. during the marriage to be given the entire $100,000 in recognition of her contributions to the marriage.
IMPORTANT TO SEEK LEGAL ADVICE: It is important to seek legal advice to get a good idea of how your property will be split up because the rules are complex and ridden with exceptions. This article is for general purposes only; it is not legal advice.
GENERAL RULES FOR EQUITABLE DISTRIBUTION: There are several generally applicable rules for equitable distribution. For example, property acquired during the marriage is presumed marital (i.e. subject to division or equitable distribution) if it was acquired during the marriage and before the divorce was filed. Marital property would include such things as bank accounts, a home purchased during the marriage, stock portfolios, pensions, IRAs, 401ks, and degrees earned during the marriage.
WHAT IS SEPARATE PROPERTY? CAN SEPARATE PROPERTY BECOME MARITAL PROPERTY? In general, property that one had before one was married is considered separate property, not subject to division. For example, if you can prove you had a sizeable bank account before you were married, and you never co-mingled these funds with marriage funds or your partner’s money, this might remain your separate property. Inheritances and gifts (except gifts given to both spouses or from one spouse other) given to one person are considered separate property.
Property that was once separate may be considered marital by the courts under several scenarios. For example, if you were once married, and you and your spouse placed your earnings into your personal bank account, this money may be converted to marital property. A home purchased before the marriage by one party, but treated as marital property after the marriage can present particularly complex legal problems and is best sorted out by an attorney.
IS NEW YORK A TITLE STATE? DOES IT MATTER IF AN ASSET IS NOT IN MY NAME? New York is not what is considered a “title state.” Therefore, just because an asset is in one spouse’s name, does not mean it will necessarily go to that spouse. However, you should always be careful when you consent to putting property in your spouse’s name because it can affect a judge’s decision regarding whether the property will ultimately be considered separate or marital.
(Child support determinations are complex. It is recommended that one use a divorce attorney before attempting to figure out how much child support one should pay. This is especially important when one considers that stating this figure wrongly in a separation agreement could invalidate the agreement. The above is not to be construed as legal advice.)
Carolyn Zenk, Attorney at Law, is a Certified Mediator, who has handled dozens of separation agreements and several litigated divorces. She prefers to mediate when possible because she believes it is usually in the client’s best interest. She practices in Hampton Bays, New York. You can call her for a free fifteen minute phone consultation at 631-723-2341.
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