How the Court Divides Property During a Divorce

Going through a divorce or legal separation can be an emotionally taxing process, requiring the assistance of attorneys, mediators, and the state court system. Couples looking to divorce or separate must consider custody and visitation as well as how to divide the property they obtained together throughout the marriage.

Another important consideration while going through a divorce is the payment of taxes. As part of a divorce action, both parties are entitled to full financial disclosure. This means that each party must disclose all assets he or she has an interest in (including businesses) and debts. Often the financial documents for the business are combed through during the course of a divorce. Bearing in mind, a judge and your spouse can report any failure to report income or properly pay taxes, it is important to consult with your accountant in order to ensure you and your business are not at risk of exposure during the divorce process.

New York State uses equitable distribution to divide property to each spouse as fairly as possible. While the principle of the equitable distribution statute is to divide marital property equally, it is not always split 50-50. A judge will consider many factors before deciding which spouse is given what property including:

  • The contributions each spouse made to the marriage and the household;
  • The insurance benefits of each spouse and if they will be lost in the divorce;
  • The financial needs of each party after the marriage;
  • The income and property owned by each spouse on the day of the marriage and the day the couple filed for divorce;
  • Where and with whom the children will live;
  • The age and state of health of each spouse, and more.

Any property of value that was obtained during the marriage can be included in an equitable distribution. Most commonly debated items include real property such as homes and other real estates; personal property such as cars, boats, furniture, or valuable artwork; bank accounts and retirement accounts; businesses; and gifts from parents.

Not all property is divided between spouses in a divorce. Generally, only property obtained or which increased in value during the marriage is deemed marital property and therefore distributed between the parties during the divorce. Spouses may also have separate property, which is property obtained prior to the marriage or inherited by or gifted to one spouse during the marriage by someone other than his or her spouse. This is not considered part of the “marital estate” subject to equitable distribution during a divorce or separation. Spouses are also allowed to exclude certain property from being considered marital property if they enter into a pre- or post-nuptial agreement, even if the property was obtained during the marriage. This allows a couple to agree that a certain asset belongs to only one spouse and will remain the property of that spouse in the event that the couple divorces.

A couple is allowed to agree upon the way in which they would like to divide the property when they decide to divorce or separate. A court will decide during trial which spouse is entitled to which property if the spouses cannot agree. Heather A. Fig, PLLC, can represent you in a divorce or separation and can help you receive the marital property you are entitled to. Call the New York divorce lawyer Heather A. Fig at (631) 419-6111 for more information or to schedule a consultation.

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