New York is an equitable distribution state, meaning marital property is divided equitably while separate property remains separate. To no one’s surprise, determining who gets what can be a messy process, especially when it involves two divorcing spouses. Property and assets that belonged to one spouse prior to marriage may be distributed to both spouses in some cases, and in other cases, spouses keep 100% of their separate property but must divide their marital property.
Since equitable distribution can be a complex process, people tend to have false ideas of what property they can and cannot get. As such, our Orange County divorce attorneys debunk 3 common myths about equitable distribution in New York below:
All marital assets are split 50/50: Do not get confused by the term “equitable distribution,” as it doesn’t imply “equitable” necessarily. Instead, “equitable” in this case means “fair.” In New York, equitable distribution of marital property is determined based on the following 13 factors:
- The income and property of each spouse at the time of the marriage and divorce
- The length of the marriage and the age and health of both spouses
- If there are minor children involved, the need of the spouse who has custody of the children to live in the marital residence and to use or own its household contents
- The loss of inheritance and pension rights of each spouse because of the divorce
- The loss of health insurance benefits of each spouse because of the divorce
- Any award of support or maintenance the court will be making
- Whether one spouse made contributions to marital property that the spouse does not have title to; for example, where one spouse helps the other spouse increase their ability to earn more money by getting a degree or certification
- The liquid or non-liquid character of all marital property
- The probable future financial circumstances of each party
- The impossibility or difficulty of determining the value of certain assets, like interests in a business, and whether one spouse should be awarded the business so it can be run without interference by the other spouse
- The tax consequences to each party
- Whether either spouse has wasted or used up any of the marital property while the divorce was ongoing
- Whether either spouse transferred or disposed of marital property at less than market value, knowing that the divorce would be happening.
Separate property remains separate: Marital property is property acquired during the marriage and separate property is property that each spouse owned before the marriage. However, many divorcing spouses believe that they will keep 100% of the separate property that they entered the marriage with. While that is almost always a possibility, if one spouse’s separate property increases in value due to the other spouse’s efforts, then the increase in value may be deemed marital property.
For example, if you entered your marriage owning a cabin, then it’s separate property. But if your spouse remodeled the cabin during the marriage and it increased in value by 20% as a result, then that 20% increase becomes marital property.
Cheating means more property for the other spouse: Although adultery is a fault-based ground for divorce in New York, it does not mean the unfaithful spouse will be penalized. Typically, a family court judge will only consider adultery in a divorce case if the adulterous activity involved a “wasteful dissipation” of marital assets.
For instance, if your spouse used significant amounts of marital assets on their new lover, then a New York family court judge may award you more alimony but not necessarily more marital property. “Egregious” behavior is also a factor for consideration in divorce proceedings, although, cheating isn’t perceived as egregious under NY law.
Questions about the equitable distribution process in New York? Concerned about how your assets will be divided? We can address your questions and concerns when you contact the Law Office of Dennis R. Vetrano, Jr., LLC at (845) 605-4330!