How marital property is divided in a divorce can be a contentious issue. Much may be riding on this matter for each spouse as they try to assemble a new life and move forward financially and in other ways. Each state in the U.S. has its own rules as to how property is divided and distributed. It may be done through the community property rule in which a 50-50 split is made between spouses regardless of what either spouse contributed to the marriage or what they did that may have led to its breakdown.
In New York, this matter is done under the rule of “equitable distribution.” This means that marital property is not subject to an automatic split but is divided according what would be fair to the parties involved. This type of property division will take into consideration each party’s needs and the particular circumstances and facts of the case that will affect this issue. Because it is an individual matter for every divorce, it is decided on a case-by-case basis. As a divorcing couple, you and your spouse can negotiate your way to an agreement. If you cannot come to an agreement, however, the matter will then be left up to the discretion of the divorce judge.
What is Marital Property?
In a divorce, the property that will be subject to a division and distribution is only marital property. This is property that you and your spouse have earned or acquired throughout the duration of your marriage. Separate property, which is not subject to division in a divorce, is generally property you acquired prior to your marriage or that was given only to you as a gift, inheritance, or perhaps a settlement award in a personal injury case. It is property titled only to you. Even if you exchange that property for other newer or better property while married, it still remains yours. This can become complicated if you commingle this property with marital property, however, which can then make it subject to division in a divorce.
How Do Judges Decide How to Divide Property?
If you and your spouse can negotiate you way to a property settlement, your agreement can be submitted to the court for final approval. However, in cases where it is left up to a judge to decide, the judge will look at various factors that are relevant to your case.
Both tangible and intangible property will be divided. Tangible property includes real property such as your home, vehicles, and personal belongings. Intangible property includes income, retirement or pension plans, benefits, and the like. Debts are also subject to division in a divorce.
Courts may look at a variety of factors in coming up with a fair division such as (but not limited to):
- How long the marriage lasted
- Each party’s earning ability, age, and health at the time of the divorce
- What each party contributed to the marriage
- Whether alimony will be factored into the divorce settlement
- What each party will lose in terms of benefits or other assets (such as medical insurance) as a result of the divorce
- Whether either spouse wasted, squandered, or encumbered marital assets to the detriment of the other party
- Any other factor the court considers to be relevant to the issue
Consult with an Albany Attorney at O’Brien & Wood PLLC
As you can see, dividing property in a New York divorce can be a complicated matter. Having an experienced divorce attorney can only work in your favor in ensuring that your legal rights are protected and that you walk away with something that is fair. Moving on from a divorce can be one of the most difficult transitions you will ever make. Ensuring you are in the best possible financial position at that stage is a must. At O’Brien & Wood PLLC, you can be represented by an attorney with the experience and dedication needed to make a difference in the outcome of your divorce settlement.
Want to talk about it? Call us at (518) 240-9992 to schedule a free, initial consultation with a divorce attorney in Albany today.