When a couple gets divorced, all property from the marriage must be sorted out by the courts. Among the many issues to be addressed by the court, a universal one is property division, specifically New York property division.
A divorcing couple should not discount the guidance of a licensed Family Law attorney. Property division laws can be complex and lawyers have the proper training/experience to tell the judge what a divorcing spouse wants or needs from the property division.
Property Division Divorce Laws in New York
The purpose of New York property division laws is to make sure that marital property is allocated to each spouse equitably. New York marital property is divided under the considerations of NY CLS Dom Rel §236 but the trial court judge receives great discretion when converting New York marital property into separate New York divorce property.
New York is an equitable distribution state. This means that with regard to New York divorce assets, anything the spouses had before a marriage usually will not be included in New York divorce assets or New York divorce property. The only property that comes into the court's distribution is that which is legally classified as property of the marriage subject to NY CLS Dom Rel §236, Part B(1)(c).
What is considered Marital and Non-Marital Property?
Under NY CLS Dom Rel §236, Part B(1)(c), marital property means “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement” between them.
Non-marital property or separate property is defined under NY CLS Dom Rel §236, Part B(1)(d) as the following:
- Property acquired before marriage or acquired by bequest, devise, or descent, or gift from a source other than the spouse
- Compensation for personal injuries
- Property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due partly to the contributions or efforts of the other spouse
- Property described as non-marital by written agreement of the parties
Dividing Assets and Debt
After the court decides which property is available for distribution, the next step is property valuation. The final step is the allocation of marital property.
Under NY CLS Dom Rel §236, Part B(5)(d), the court considers a number of factors in dividing assets and debt. Some of these are:
- The marriage's length
- The parties' age & health
- Either party's loss of health insurance benefits after divorce
- Waste of assets by either spouse
- Tax consequences
Using statutory factors, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.
- Cash: Divided equitably among the
- Example 1: A joint savings account has $5,000 and each spouse contributed $2,500 to the amount. The court would most likely divide the money equitably.
- Example 2: A joint savings account has $5,000. One spouse contributed $4,000 and the other contributed $1,000. The amount may be divided in an equal split or may be more balanced if the $1,000 contributor has fewer assets than the $4,000 contributor.
- Retirement Plans: Divided based on the
duration of the marriage at the time the benefits accrued, looking at the
present value of the plan and/or survivor benefits.
- Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 20 of those years. The ex-spouse would be entitled to a portion of the retirement plan that was acquired during the marriage.
- Example 2: A spouse has a vested but unmatured retirement plan. No division takes place until the plan is payable to the spouse who has it but the portion earned during the marriage is marital property.
- Vehicles: Divided based on the values at
the date determined by the court. May be
sold or given to a spouse outright.
- Example 1: A car is owned by a spouse The car may be sold with the proceeds to be given to a poorer spouse or divided among the spouses in some way.
- Example 2: A boat has a shared title. The boat may be sold with the proceeds going to each spouse equally or given to a poorer spouse outright.
- Insurance: Determined based upon each
spouse's health, availability of alternate insurance and premium payments from
- Example 1: One spouse has covered the other under employer provided health insurance. The other spouse is in poor health and couldn't afford alternate health care coverage. The court may order the first spouse to continue covering that spouse for a set time and/or award money to the ailing spouse to get new coverage.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. The court may order this to continue if the spouse has no other insurance or award the spouse a portion of the benefits.
Settling Disputes in a Divorce Case with Property and Asset Division
NY CLS Dom Rel §236, Part B(5)(g) bars both parties from waiving any reason the trial court used in dividing the marital property. However, property division orders are enforceable by statute and may be modifiable at the court's discretion.
Generally, the trial court's determinations will not be changed by a higher court unless the division was clearly unjust. This is very hard to prove.
Help From a New York Property Divorce Lawyer
It can not be stressed enough that retaining a New York property divorce lawyer is key to getting the fairest result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.