News

Divorce without a Prenuptial Agreement in New York

  • Oct 20 2017

A prenuptial agreement is a contract between spouses made prior to marriage. Two of the issues commonly addressed in prenuptial agreements are property division and spousal maintenance. However, in divorces cases without a prenuptial agreement, the above decisions fall to the courts to decide. Below is an overview of the ways in which New York courts make property division and spousal maintenance decisions when no prenuptial agreement is involved.

Spousal Maintenance

When making decisions regarding spousal maintenance, courts examine a number of factors, including:

  • The time and training required for the spouse receiving maintenance to become self-supporting;
  • Whether the spouse seeking maintenance has forgone or delayed training, education, or career opportunities as a result of the marriage;
  •  Which spouse is the primary caretaker of any children;
  • Whether the care of children has hindered one spouse’s earning capacity;
  • Whether a prolonged absence from the workforce will affect a spouse’s ability to find employment;
  • Each spouse’s tax consequences;
  • Each spouse’s property and income;
  • The length of the marriage;
  • The health and age of each spouse;
  • The present and future earning capacity of each spouse;
  • Any act performed by one spouse that has inhibited the other’s earning capacity or ability to find employment;
  • The distribution of marital property;
  • The household contributions of the spouse seeking spousal maintenance, including the impact such contributions had on the career or earning potential of the other spouse;
  • The dissipation of marital property by either spouse;
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
  • The cost, availability, or loss of health insurance.

Property Division

In addition to spousal maintenance, there are a number of factors considered by courts when making property division decisions in New York, including:

  • The potential tax consequences that the distribution of specific property will have on each spouse;
  • Whether either spouse has wastefully dissipated marital assets;
  • Whether either spouse transferred or mishandled marital property in contemplation of separation or divorce;
  • The income and property of each spouse;
  • The length of the marriage;
  • The health and age of each spouse;
  • Whether the property to be distributed is liquid or non-liquid;
  • The estimated future earnings of each spouse;
  • For marital property that includes an interest or component in a business, corporation, or profession, the difficulty of valuing such an interest and whether it would be desirable for the same to remain intact;
  • The benefits that each spouse stands to lose or gain as a result of the divorce;
  • Whether the court has awarded either spouse with spousal maintenance; and
  • Whether either spouse has an equitable claim to property to which that spouse does not have title.

New York Legal Representation

In New York, divorce is a complicated process. If you are considering pursuing a divorce in New York, please contact the experienced New York family law attorneys at O’Connell and Aronowitz for a free initial consultation.


Posted in: L.I.F.E. Group Blog

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