Dividing Your Property During Divorce

Under New York law, when a couple divorces, they split their property along the lines of equitable distribution. Equitable distribution means that the court determines what is fair for each spouse to receive in the split, not necessarily what is equal. This generally includes determining what each souse contributed while they were married and what their needs will be moving forward.

How is marital property separated?

In a divorce, the court will look at what property is separate and what is marital. Marital property is anything acquired during the marriage, such as the purchase of a family home, income, and retirement benefits, and excludes things such as assets obtained outside of the marriage, inheritances, and gifts. Once it can be determined what property is marital, the court will divide the assets equitably.

During property division, the court looks at:

  • The length of the marriage
  • Age and health of each spouse
  • Pension and health insurance
  • Alimony awards
  • Contributions to the marriage
  • Projected financial future of each spouse
  • Whether the family home is kept
  • Where marital assets were spent
  • Any other factors that can affect the fair consideration of property

A couple that is dividing their property will have their assets and debts combed over by the courts to develop an intimate look at their past, present, and future financial needs. Based on this information, the court will divide property in a way that benefits all involved, without leaving one party destitute without any finances as a result of the court-ordered divorce settlement.

Dividing property can be intimidating, and anyone may be concerned that the court will not take care to protect their interests. Before or during a marriage, a couple can draft a pre or postnuptial agreement that outlines how property can be divided in case of divorce. If an agreement has not been drafted, working with a divorce attorney can help ensure a spouse obtains the right property in divorce.

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