What are the Equitable Distribution Rules in a New York Divorce?
One of the key issues that must be resolved in a divorce is how to divide the marital property. In New York, such property must be divided according to the state’s equitable distribution rules. This means that the property must be divided in a way that it fair to both parties; however, this does not necessarily mean equally. The best way to navigate these complicated rules is by enlisting the services of experienced property division attorneys.
What is marital property?
The first consideration in understanding equitable distribution is the difference between marital property and separate property. In short, marital property includes any property that was acquired by each spouse during the time they were married, regardless of who held title, including the income and retirement benefits earned by each spouse during the marriage. Separate property, defined below, it not marital property.
It is worth noting that small businesses and professional practices are also considered marital property that is subject to equitable distribution. However, the courts are typically inclined to award a business or practice to the individual who who runs the entity while awarding the other spouse additional property or a cash payment as compensation. Of course, these issues become murky when a couple runs such an enterprise jointly, which makes having an experienced attorney even more crucial.
Finally, each spouse will retain his or her own separate property such as:
- Any property acquired by either spouse before the marriage
- Property received by inheritance or gift from a third party
- Compensation from personal injury lawsuits/legal settlements
- Any separate property specified under a valid prenuptial agreement
How is equitable distribution determined?
Unless the parties have a prenuptial or other written agreement specifying how the marital property will be divided, the factors involved in determining the equitable distribution include:
- The financial status and earning capacity of each spouse
- The contribution of each spouse to the acquisition of the marital property
- The contribution of either spouse to the education or earning capacity of the other
- The future financial needs and liabilities of each spouse
- Whether a spouse is receiving spousal maintenance from the other
In addition, the court will also consider any pension, health insurance, and inheritance rights either spouse may lose after the divorce, the tax consequences for each spouse, and any other factor the court determines to be just and appropriate.
Ultimately, dividing marital property and understanding the rules of equitable distribution is complicated, which makes having the advice and guidance of experienced property division attorneys invaluable. At O’Connell and Aronowitz, our New York divorce attorneys represent clients in Albany, Latham, Plattsburgh, Saratoga, and throughout upstate New York.
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