Who Gets What In A New York Divorce?

Who Gets What In A New York Divorce?

“Equitable distribution” is the term used to describe the dividing up of the financial and other marital assets between divorcing couples. “Equitable” simply means fair: or the fair distribution of everything between the two spouses. The entitlement of each spouse to equitable distribution of marital property or maintenance (alimony) in a New York divorce is dependent upon certain complex factors that the courts take under consideration. These factors include: The duration of the marriage; the conduct of each of the spouses during the time of the marriage; the health and age of each spouse; the spouses’ occupations, financial incomes and sources of that income; the employability and vocational skills and training of each spouse; the estate, liabilities, and needs of the spouses; and ability and opportunity of each spouse to acquire capital assets and future income.

Every divorce is different and, therefore, the judge in each case will weigh factors differently depending upon the specific circumstances. If children are involved, child support must also be taken into account and awarded by the judge.

The criteria and computation of distribution of marital property and spousal support or child support are very complicated and require a close scrutiny by the courts of financial documents and disclosure of each spouse in the divorce action. To insure that you will receive that to which you are entitled, it is essential that you consult a NY divorce attorney with a great deal of experience in this area.

Equitable distribution of marital property

According to the New York Domestic Relations Law, the Court is required to determine the separate and marital property of the spouses. The disposition of the property to each spouse is contained in the final judgment of divorce.

“Marital Property” is defined by the NY Equitable Distribution Law as all property acquired by both or either spouses during the course of the marriage regardless of form title held: prior to execution of a separation agreement or prior to commencement of a matrimonial action. The New York Domestic Relations Law says that all property and assets acquired during a marriage are marital property, regardless of whether the property is held in the names of both spouses and in the name of one spouse. According to the law, a spouse must identify and provide a specific value for the marital property before the Court can make a determination of equitable distribution. If a spouse requests a share of property that is held in the other spouse’s name, he or she must prove that it is "marital property" and what the value of that property is. Only then can the court can determine equitable distribution of that marital asset.

Separate Property

Separate property is considered as the following: Property which was acquired prior to the marriage; property acquired by devise, bequest, and descent or as a gift from a person or party other than the spouse; personal injury compensation; property obtained during the exchange separate property or through an increase in value of that property; property which was described as separate property in a written agreement by both spouses. The burden of proving that property is separate is the burden of the spouse it making the claim that it is separate property.

Be sure to receive that to which you are entitled

If you live in New York State and are divorcing or contemplating a divorce, divorce attorney Ingrid Gherman can help you determine how the NY court will act on marital assets in your case. She can assist you in taking the necessary steps to obtain and safeguard that to which you are entitled in a fair distribution of your marital property. Call for a consultation with Ingrid Gherman (212) 941-0767 or send us the on-line form.