Divorce and Equitable Distribution

In New York, there is no way for either partner to take “everything.” Both spouses theoretically have an equal claim on any property acquired on or after the date of the marriage. 

Yet that doesn’t mean that property distribution will be 50/50, nor does it mean that certain arrangements might not be devastating if mishandled. That’s where we come in: we protect the assets that matter most to you, and help ensure that the very process of dividing your assets doesn’t devalue them.

Equitable distribution covers both assets and debts. Your total net worth will be divided between both partners. 

Defining Marital Property

Marital property is any property acquired on or after the date of the  marriage. This includes money in the bank account and income earned during the marriage, property purchased with either spouse’s income, retirement benefits earned during the marriage, and the appreciation of that property.

Separate property would include any property either spouse owned prior to the marriage, property received individually as an inheritance or gift, personal injury settlements awarded to one spouse, and any proceeds or appreciation of the value of separate property. It can also cover property protected in a prenuptial agreement.

Complications can arise: some property can become comingled. For example, if you receive an inheritance and use it to make improvements to the marital home the marital home does not suddenly become separate property. It remains marital property, even though you used your inheritance to improve its value. 

Factors to Consider

Many factors go into considering what is fair and just in regards to property distribution. 

This can include each spouse’s income and property before and after the marriage and divorce, the length of the marriage, the age of each spouse, the potential earnings of each spouse, the needs of the children, whether either spouse will be receiving spousal maintenance, and either spouse’s contributions either as a homemaker or as an employee of the family business. 

The way assets were used may be considered as well. While the courts don’t necessarily care if you had an affair they will care if you spent extravagant potions of marital property on showering that paramour with gifts or trips. This will be taken into account as well. 

How Courts Handle Retirement Assets

There are several ways to handle retirement assets. One method is to divide up the account, transferring part of the retirement benefits to the spouse and essentially creating a second retirement account. This can be problematic as reducing the amount in the account can reduce that account’s future earnings as there will be less money in the account to earn interest from. 

Another method is to have a certain percentage of the benefits paid out to the spouse in the future when the owner of the retirement account starts receiving payouts. 

In some cases, it’s more advantageous to offer an up-front, lump sum payout to avoid future entanglements with the retirement account. We can help you negotiate this option if it’s the right one for you. 

How Courts Handle Business Assets

Attempting to divide a business may well devalue it entirely, or render it dangerously unstable. Few people want to run a business with a spouse they can’t get along with. Many would resent giving up control of a business to a spouse when they were the ones who put in the hard work of building it.

Fortunately, courts are usually inclined to award the business to the person running the business. They will then make up for this by awarding the spouse other property or allowing some sort of equalization payment to be made to compensate the spouse for the loss of the business income. 

Get Help Today

We can help ensure the division of assets process is as advantageous for you as possible. Get experienced help from a sophisticated team who understands all of your assets and can create workable legal solutions.

Call (516) 679-4300 to set up a consultation today.