Equitable Distribution and Divorce in New York
When going through a contested divorce or
uncontested divorce in New York, property distribution will need to be agreed upon by both partners or ruled by the Court. In New York, equitable distribution is the process which is used to determine the division of property between spouses. Although there are laws laid out to this affect in New York, determining what is marital property and what is separate property can be extremely complex and difficult.
If you are considering or are currently going through a divorce, a New York divorce attorney at the Law Offices of Brian D. Perskin may be able to help with all aspects, including
child custody and support,
visitation rights and equitable distribution. An attorney will be there, on your side, to help ensure you get the best outcome for your future and your family’s future. We have over forty years of experience with divorce and family law in New York and help clients throughout the state, including Bronx, Queens, Manhattan and Brooklyn.
Equitable distribution is a process for dispersing property acquired by or owned by either spouse upon the termination of marriage. Distribution replaces “common law” principles of property ownership. Prior to equitable distribution, New York was a “common law” state. This meant that property acquired by either spouse during the marriage was distributed according the owner named on the property title.
In the state of New York, all property acquired and income earned during a marriage is subject to equitable distribution. When a marriage is dissolved, the courts must make decisions regarding the distribution of property. There are a number of factors that the court must consider before the property is divided.
- Property acquired during the marriage
- Property acquired before the execution of a separation agreement
- Property acquired before the beginning of a matrimonial action
Click here for an in depth discussion of Enhanced Earnings
Businesses, degrees and licenses are all property subject to equitable distribution. If a spouse’s business was formed during the marriage, then it is considered marital property. If the business was created prior to marriage and continued on during marriage, then the marriage has an interest in the increase in value of the business. If a spouse obtained any kind of degree during the marriage, the increased earnings as a result of the license are subject to equitable distribution. Any law, medical, accounting or financial planning licenses and MBAs acquired during the marriage are also subject to distribution laws.
Marital debt must also be divided when you prepare your separation agreement. If the debt occurred during marriage, it is marital debt. It does not matter if that debt is in your name or your spouse's name.
Regardless of the specific property you and your partner have which may be subject to equitable distribution, a lawyer will be valuable in helping you keep that property which is yours and obtain a part of the property which should be shared.
In the past several years the Appellate Division has been narrowing this doctrine, requiring that spouses who are seeking Enhanced Earnings contributed to their spouse attaining their degree or license. For more information about the Appellate Division's enhanced earnings jurisprudence please click the link above.
What Determines Property Distribution in New York?
In New York, when distributing property, the courts will sort out what is to be considered separate property and what is to be considered marital property. Separate property usually remains separate and marital property is distributed equitably between both spouses. The courts will also take into consideration the circumstances surrounding the case and both parties. Having an experienced lawyer on your side can help you reach the outcome which will be most beneficial to your future, in regards to property distribution. Your lawyer will understand what may be subject to be considered marital property and what information is needed by the court to determine this.
- Property acquired before marriage
- Property acquired as inheritance, or gifts from a person other than the spouse
- Personal injury compensation
- Property acquired in exchange for or the increase in value of separate property
- Property considered separate according to a written agreement between the spouses
A spouse must show proof that the property is indeed separate, and an attorney can help with this. When you work with an attorney at our firm, we will utilize accounting experts and others in this field in order to help the court determine what should be classified as separate property. This procedure must be done with all real property as well as bank accounts, investment accounts or any other asset that has value. Equitable distribution can bring up a number of questions that our firm is prepared to address. For skilled legal representation through your divorce, contact a New York divorce lawyer from our firm today!