New York Contested Divorce Attorney
Contested Divorce in Queens, Bronx, Manhattan, Brooklyn and New York
A contested divorce is likely one of the most difficult situations your family will ever have to go through. Having a New York divorce attorney at your side who is competent and who is dedicated to helping you achieve a positive result is the most beneficial thing for both you and your family.
When two people decide to end a marriage, they will need to make decisions regarding children, property, and their new futures apart. As New York requires that an action for divorce be based on certain acceptable grounds, the parties will have to agree on the grounds for a divorce as well. In New York, a divorce is termed “contested” when the parties involved cannot successfully come to agreements about the decisions that need to be made upon the dissolution of a marriage:
During any divorce proceeding, but particularly in a contested divorce, the advice and support of a competent and devoted lawyer can go a long way in aiding the divorce process. While New York law governs the final determinations regarding property distribution, child custody, support and the like, it should be the goal of any divorce lawyer to help secure an outcome that will satisfy the client’s emotional and financial needs. At the Law Offices of Brian D. Perskin, we are committed to just that. We work with our clients every step of the way to ensure they understand every step of this confusing and, at times, grueling process.
For most, divorce brings a time of heightened uncertainty and vulnerability. A strong, confident attorney becomes a crucial part of the process.
The Law Offices of Brian D. Perskin: New York Contested Divorce Lawyers
At the Law Offices of Brian D. Perskin, we provide legal assistance to people throughout New York, Queens, Bronx, Brooklyn and Manhattan who are facing a contested divorce. Our legal team has over forty years of experience in dealing with divorce cases in New York, and our commitment, hard work and dedication enables us to provide outstanding case results for our clients.
What happens to joint property?
During the course of your marriage, whatever the duration, it is a pretty safe bet that you have accumulated lots of, well, stuff! There are the obvious things: the house, the cars, the bank accounts. Then there are the intangibles: the law degree that you struggled for, or the MBA that you cheered and encouraged; perhaps the stock options or pension plan that came as a result of the hard work and sacrifices made in your professional career. And if you are anything like the average couple, all of these valuables, both those you can lift, and those you can barely define, combined with assets, money, and liabilities from other sources, have been thrown into one big pot over the years. When divorce brings the end of a marital union, this property must be divided. Depending on state and jurisdiction, these assets are divided differently. New York engages in equitable distribution as a system for distributing the assets and liabilities involved in a marriage: as the name suggests, this system seeks to divide the assets fairly among the parties, as the marital union in our state is looked as a joint venture, both parties having equal rights to the fruits of the relationship.
When a marriage is dissolved, equitable distribution describes the manner in which property is dispersed between two former spouses. Property owned and acquired during the marriage, including all assets and debts, is termed marital property, and is subject to equitable distribution. New York's policy reflects the idea that a marriage is an equal partnership, and when such a partnership dissolves, separate property, alternatively, is not subject to equitable distribution and therefore remains in the hands of the spouse who lawfully owns the property. The distinction between marital property and separate property is therefore quite important:
DRL §236B(1)(c) defines marital property as the following:
"The term 'marital property' shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a marital action, regardless of the form in which title is held..."
In this definition, the Court has interpreted the term property broadly. The widely held definition of property encompasses intangible valuables such as pension rights, professional licenses, and other assets that, while extremely valuable, cannot be readily liquidated or defined. This broad interpretation is exceedingly more significant for many couples, as we live in a time where one's most valuable assets are often intangibles such as health care, education, stock options, and professional achievements.
For a leading case on the definition of marital property, see the Court's decision in Majauskas v. Majauskas, 61 N.Y.2d 481 (1984). Cases have continued to expound on this idea: in
Murtha v. Murtha, 694 N.Y.S.2d 382 (1999), a husband's certification as a certified financial analyst was deemed to carry marital value and was thus considered marital property for the purposes of equitable distribution; in
Elkus v. Elkus, 169 A.D.2d 134, 572 N.Y.S.2d 901 (1999), even a husband's contribution and efforts expended to further his wife's opera singing career was said to carry value, as it led to an increase in her career.
Additionally, property acquired during a marriage is presumed to be marital property unless a spouse can prove otherwise. In other words, all property that is not explicitly defined as separate property will be deemed marital property for the purposes of equitable distribution. And of course, during the marriage includes any time leading right up to the commencement of a divorce action.
Separate property, as defined by DRL §236B(1)(d) includes the following:
- Premarital property, including assets or property acquired by one spouse before the marriage.
- Property acquired in exchange for the increase in value of separate property, unless the increase in value can be attributed in part to the efforts or contributions of the other spouse.
- Property excluded expressly by a prenuptial agreement, as long as the terms are valid and enforceable under current principles. (See prenuptial agreements.)
- Compensation for personal injury, meaning any proceeds derived by either spouse through the settlement or resolution of a personal injury suit.
- Inheritance by one party individually.
- Gifts given to one party individually.
Separate vs. Joint Property: Which is which?
The trouble is, when two people have been involved in an intimate, close relationship for a number of years, it may be difficult to discern what property constitutes separate property and which assets and liabilities belong to both parties equally. When a marriage dissolves, it may be difficult to determine the exact value of property that is separate, and property that is shared. Certain circumstances force the courts to make difficult decisions about the status of property:
- The longer a man and woman are married, the more difficult it becomes to trace the origin of assets, thus making it harder to determine whether alleged separate property is in fact separate property. Consider this: an asset once held by one of the parties individually prior to marriage may have been used to fund other acquisitions during the marriage.
- When separate assets are combined during the marriage, there is a real question as to whether the original asset retains its separate property classification. A question like this will often turn on how long the assets have been joined together, and how the resulting combination has been utilized during the marriage. Thus, the co-mingling of assets creates one significant area where the distinctions between separate property and marital assets become blurred.
- It can be possible to trace a non-marital asset that has been co-mingled back to its pre-marital origin, when the asset was separate property. Tracing is done as a way of giving the party with a non-marital asset a non-marital interest in at least part of the asset that has been acquired using non-marital funds. This can be done through a paper trail, and while not always successful, is one way that a spouse can attempt to restore his or her non-marital claim to an asset that has since been combined with other assets.
Once separate assets may lose their "separate property" label if the asset has been improved significantly through the actions of either party during the marriage - so even if a spouse acts to improve only his separate property, it still becomes marital - remember, any gain produced during the marriage through the efforts or work of either spouse is marital property, thus subjecting it to equitable distribution. Of course, situations exist where the value of an asset will increase simply through the passage of time, or historical circumstances and the gain in worth cannot be attributed to the actions or efforts of either party. The Court does draw a distinction between these two situations:
- When a separate asset increases in value due to the efforts of one of the spouses, at least in part, this is called Active Appreciation, and results in the creation of marital property.
- If the increase of value, however, came about without the interference of either party during the marriage, the asset remains the separate property of one spouse. Courts have termed this Passive Appreciation.
Real property is one area where it is increasingly difficult to determine whether property is marital or separate, and specifically whether property that was at one time separate has become marital due to active appreciation.
Likewise, it is also difficult to trace real property assets back to an original non-marital owner. Real property, as opposed to personal property, is often paid off over time instead of in one lump sum at the time of purchase. Consider this: one spouse purchases a home before marriage, making it separate property. Later, after marriage, the same spouse is still making payments towards this home, using funds from current income - marital funds.
If you are ready to file for divorce, or if you would like to learn more about your divorce options, you should speak with one of our professional attorneys today. Contact a New York contested divorce lawyer from our office in
Brooklyn, NY (718) 875-7584 or
New York City, NY
(212) 355-0887 to schedule your consultation.