The division of marital property is part of the divorce process. And for those who own a business, have retirement savings or have other investments like stocks and real estate, property division can be a complicated and potentially contentious issue.
Here are some things to keep in mind about marital property division in New York:
“Equitable” does not always mean “equal”
In New York, marital property is divided on the basis of “equitable distribution.” That means many factors must be considered when reaching a property settlement. While a 50-50 split may be the fairest result in some cases, it might not be in many others.
Factors that can affect equitable distribution include:
- How much each spouse contributed to acquisition of marital property, both directly and indirectly
- The probable future financial circumstances of each spouse
- The length of the marriage and the age and health of each spouse
- A total of 14 enumerated statutory factors are to be considered
When negotiating a fair division of your property, one must also keep in mind the tax implications. In some cases, these tax implications can have a significant impact on value. Advice from an accountant is often recommended.
Is it marital property or separate property?
When dividing property in a divorce, the first question should be whether the asset or debt is truly marital property.
Generally, under New York law, property acquired during the course of the marriage is presumed to be marital property and thus divisible between the spouses. However, if you acquired property prior to the marriage, then the value of that property may be separate property, in whole or in part, and therefore not necessarily subject to division. An inheritance received during the marriage may also be considered separate property if the inheritance hasn’t been mingled with marital property. Similarly, a premarital agreement may specify that certain items of property will remain the separate property of one spouse and not be divided.
Whether an asset or debt is separate can be a complicated question, and it’s important to have an experienced attorney on your side to trace the provenance of the property.
Get an accurate valuation
Property division is rarely a neat and tidy process, particularly when a couple owns complex and high-value assets. Sometimes, as with a family business or real estate investment, putting a value on an asset may require expert assistance. Before agreeing to a property settlement, speak with an experienced divorce attorney to ensure that you are getting your equitable share of the marital estate.