During divorce proceedings, the matter of dividing up the couple’s assets often becomes highly contentious, with each spouse emphatically insisting that they deserve a greater share than the other is willing to give them. These quarrels frequently end up in the courts, where a judge listens to arguments from each spouse and then orders the assets to be divided in a certain way—not necessarily in a manner acceptable to either side.
Whether it is done by mutual agreement or by court order, the division of assets can be a very complicated procedure. This is especially true when there are many types of assets under consideration. If you have initiated the divorce process, or are about to, it is vitally important to understand the legal issues relating to dividing marital assets. When you need a Nassau County and Suffolk County divorce lawyer who has experience with all aspects of these issues, please contact the Law Office of Robert H. Montefusco, P.C.
Division of Assets: An Overview
Under the laws of New York State, the divorcing spouses have the right to reach a settlement on their own terms as to how their assets should be divided. The result of this process is a binding written agreement. When such an agreement is not possible due to conflict between the spouses, the matter is turned over to the court. Each spouse will be required to provide the court with a Statement of Net Worth, signed before a notary public, listing all their financial data, including income, debts, and property. At the conclusion of a trial, unless the parties settle beforehand, the court will go about determining which assets are to be classified as marital property and which as separate property.
Marital and Separate Property
Marital property is that which was obtained during the course of the marriage. As such, it is subject to court-ordered division between the spouses. Separate property, on the other hand, is considered the personal asset of a particular spouse, and it is not subject to division. This is obviously an important distinction when it comes to determining division of assets, yet the differences between the two types of property aren’t always obvious.
Marital property: Any businesses, personal property, securities, savings accounts, debts, and pension plans are generally placed in this category if they originated or were obtained during the period of the marriage. This property can be divided up by the courts. In some cases this will mean liquidating the property and distributing an equitable portion of the money to each spouse.
It is important to realize that assets can be ruled marital property even if they were purchased by one spouse. For example, it doesn’t matter that a property title is in only one spouse’s name—if it was bought during the marriage, with marital funds, it is marital property.
It is important to realize that assets can be ruled marital property even if they were purchased by one spouse. For example, it doesn’t matter that a property title is in only one spouse’s name—if it was bought during the marriage, it is subject to division.
Separate property: Any property you owned prior to the marriage will usually be ruled to be separate property, hence not subject to division. Inheritances, personal-injury compensation, and gifts from third parties are also usually classified as separate property.
To ensure that the courts do not misclassify your assets, you should contact a division of assets attorney with a background in divorce and separation law litigation.
What Is Equitable Distribution?
New York courts follow the principle of “equitable distribution” when allocating marital assets. This does not necessarily mean that contested property is split fifty-fifty. There are a large number of factors that the courts can take into consideration when distributing marital property. These include the following:
- The duration of the marriage
- The current age of each spouse
- The health condition of each spouse
- The future earning potential of each spouse
- Spousal maintenance
- Wasteful spending or attempts to depreciate assets in anticipation of divorce settlement
- Post-divorce taxation issues
- Loss of benefits as a result of the divorce (e.g., health insurance)
Some types of property, such as homes and businesses, must be carefully appraised in order to arrive at a fair evaluation of their worth. After considering all relevant factors, the court will order the distribution of assets in a manner it deems fair and reasonable.
Contact a Divorce Attorney in Suffolk County & Nassau County
t the conclusion of a trial, unless the parties settle beforehand, the court will go about determining which assets are to be classified as marital property and which as separate property. When you need a lawyer for your division of assets case, contact the Law Office of Robert H. Montefusco.