Equitable Distribution of Marital Property

Equitable Distribution of Marital PropertyProperty Distribution

In a divorce action, the New York Domestic Relations Law states that the Court is required to determine the respective rights of spouses in their separate and marital property; and to provide for disposition of property in the final judgment. This disposition or division of property is done in the cases of divorce, annulment or dissolution of a marriage, declaration of nullity of a void marriage, or a proceeding to obtain distribution of marital property subsequent to a foreign divorce.

Marital Property

The law further states that all assets and property acquired during the marriage, before they sign a separation agreement, or before filing an action for a divorce, are considered to be marital property, even if property is held in the name of one spouse or both spouses. The law requires a spouse to identify and specifically value marital property before the Court can determine equitable (fair) distribution.

Financial Discovery

Each spouse has a right to obtain financial information and documents from the other. “Financial Discovery” is the legal procedure for obtaining this information. The discovery process may last a long time, and can be expensive.

The methods of obtaining financial discovery are listed in the New York Civil Practice Law and Rules. For example: divorce attorneys in New York can serve “Interrogatories” requesting written answers to a specific set of questions; lawyers can also request production of specific financial documents by serving a “notice of discovery and inspection.” Lawyers can also conduct examinations before trial (also known as “depositions”) where they require each spouse to answer financial questions under oath and in the presence of a stenographer who later provides a transcript of the exact questions answers.

The lawyer for each spouse must give each other advance notice of their intention to conduct the examinations before trial. When your lawyer receives notice that your deposition is scheduled, your lawyer will advise you of this procedure and will help you prepare for it. Throughout her many years of practice, Ingrid Gherman has gained exceptional experience in conducting depositions and preparing clients for them.

As part of the discovery process, spouses can also obtain appraisals of their marital assets, including real estate appraisals, pension and retirement appraisals; evaluations of businesses; and valuations of a spouse’s enhanced earning capacity as a result of any advanced degree, certificate or license obtained during the marriage.

After financial discovery is complete, both spouses and their lawyers are ready to try to negotiate an amicable settlement of the divorce case. The Judges who preside over NY divorce cases generally encourage the parties to negotiate an agreement rather than have a trial where they no longer have control of the outcome of their case. Your divorce attorney can advise you to either accept or reject a settlement proposal made by your spouse. However, the decision to settle your divorce case belongs only to you alone and your attorney cannot and will not decide for you. If the spouses cannot reach an amicable settlement of their divorce case, the court will schedule the case for a trial.

A spouse who requests a share of property held in the name of the other spouse, has the burden of proving that it is "marital property" and the value of that property before the court can determine equitable distribution of that asset.

The New York Domestic Relations Law requires the Court to consider a number of factors in making an equitable distribution of the parties’ marital assets.

Separate Property

The New York Domestic Relations Law defines “separate property” as: assets each spouse owned before they were married; assets received by a spouse during the marriage from an inheritance or as a gift from anyone other than the other spouse; sums of money received by a spouse during the marriage as a result of personal injuries; assets specified to be separate property in a written and signed agreement. The burden of proving that property is separate is on the spouse who claims it is separate.

If you are considering divorce or separation, you need to know what assets and property from the marriage you are entitled to. To speak to an attorney with a long history of obtaining the fair share of marital assets for her clients, contact the law office of Ingrid Gherman to schedule a consultation. Call (212) 941-0767 or send the on-line form.