Asset Division in Divorce
Divorce means much more than a couple parting ways. You and your soon-to-be ex-spouse share much of your possessions - from the lamp in your living room to your cars and property - and now things may get a bit more complicated than attempting to divide your assets without the help of a New York divorce attorney.
Divorce is a complex process because splitting what you owned right down the middle is not as simple as adding everything and dividing the assets and debts in divorce by two. You may have purchased a certain item with your own money, and so you may think that you own that particular item, but marital laws aren't quite that cut and dry. In fact, complex matrimonial law can be quite frustrating if you do not have a skilled divorce attorney on your side to help you decipher the intricacies of divorce.
Similarly, debt must be distributed between the two ex-spouses. Most Americans have debt in many forms - it can manifest as credit card debt, car payments, student loans, mortgages, and other expenses that were absorbed together and must now be settled.
If you are getting divorced, it is crucial that you get an experienced team of divorce lawyers in Suffolk County to help you make the separation as clean and painless as possible.
Learn more from our blog, "Protecting Separate Property in a Divorce."
How Is Property Divided in a Divorce in New York?
Divorce in Suffolk County can be a difficult process, but New York is a state that participates in the equitable division of property. In layman's terms, it simply means that the property is divided between spouses in a manner that is equitable, or fair. "Fair," as you may well be aware, is a relative term. What is fair for one person may not be fair for the other party involved in the matter at hand. So how exactly is fair determined?
Fair, in the state of New York, is determined by examining a set of factors that exhibit what each spouse contributed to the marriage and which spouse will require what after the separation is complete. It is important to remember this: the division of property does not have to be equal for it to be considered fair. The needs of one spouse may heavily outweigh the needs of the other, and this must take this into consideration before finalizing the divorce.
The Division of Marital Property
To determine how the equity will be divided among the two spouses, it must be determined what belongs to the entity of the marriage (marital property), what belongs to each spouse separately (singular property), and the quantity of each.
- Marital Property - All the property that was purchased or earned during the marriage, regardless of who purchased it and what the title of that object or objects reads.
- Singular (Individual) Property - This is property that belonged to you before the marriage, and may possibly include property that you received during the marriage. For example, any gifts you received, inheritances, or any personal injury benefits you may have received during your time together.
However, there are exceptions to that rule. For example, if you owned a cabin before you two were married, it would normally be considered yours to keep after the divorce is finalized. But if there were remodels made by your spouse and those refurbishments increased the property value of that cabin during the marriage, then that portion of the appreciation which was derived from the improvements is a marital asset.
Why? Because the increase in property value came directly from your spouse's efforts.
You owned a separate condo in a new up-and-coming neighborhood and the property value increased by the inherent demand for property in that neighborhood, that condo remains singular property.
In New York, the court can only divide and grant marital property; they cannot grant singular property to your spouse. Take note that if there is alimony to be paid, then the court may consider all of your assets which include marital and singular property.
Is New York a Community Property State for Debt?
New York used to be a community property state, which means a couple's assets, including their debts, were split down the middle in a divorce. However, it is now an equitable division state, which means that, at the time of divorce, a judge will determine the fairest way to divide the property.
The Factors Determined in Division
Property that is normally divided between two parting individuals are things like real property such as the home which you two and any other family members shared, personal property like jewelry, and intangible property like debt, income, and benefits. There are a few factors that help the court decide what goes into which category to have a fair distribution of equity.
Factors include both spouses' ages, income, health, any financial circumstances that will come in the future, and property. The court will also examine how much each spouse bestowed towards the accession of new property. If the spouse is a homemaker, the court will see this contribution as a monetary one.
There exist assets which are particularly difficult to separate and divide in a divorce. Cash, a liquid in financial terms, is an incredibly easy asset to divide because it can be divided right down the middle to the very last cent. However, interest on a business that you two legally own is much harder for the court to divide. In a case like this, wherein the assets are not easy to bifurcate, or divide, the court has the option to set up a distributive award. This is a collection of payments made to the spouse in order to balance out the distribution of property which was unevenly distributed during the divorce hearing.
Fault in causing the marriage to fail is not part of the equation in New York. For example, if your spouse flew to Rome with another person using marital funds, the court may punish that spouse by having them pay for the trip. Likewise, no spouse can sell, transfer, or do away with any piece of marital property. If they do, then the court may punish that spouse when they divide the assets fairly. Our Long Island divorce lawyers will proactively fight on your side so that your property will be rightly divided and you get exactly what you merit.
Spousal Maintenance, or Alimony
Even though you two are finally separated, that does not mean all ties are cut. There exists such a thing as spousal maintenance, formerly called alimony. This is a payment from one spouse to the other to help maintain the other spouse once all of the papers are signed and the divorce is finalized. This payment of spousal maintenance can be made periodically (weekly or monthly, for example), or in a lump sum. The payment may also be set for a specific period of time (like until all children reach the age of 18) or for indefinitely.
If the divorce process takes a rather long while to settle, the spouse can request temporary spousal maintenance throughout the divorce process.
After all the assets and property are divided fairly and the divorce is finalized, the court may order permanent spousal maintenance. In the state of New York, this award is based off many of the same factors that were considered when dividing property among the divorcing spouses. Additional factors include education level and earning capacity, the standard of living, and the needs of the children involved in the divorce.
Contact us now to learn more about property division in New York!
Blog Author: Attorney Robert H. Montefusco
Robert H. Montefusco is the founder of MONTEFUSCO | PAMMER and is here to help you get through your family law case.
Visit his bio to learn more about he compassionately helps clients navigate the divorce process.
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