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Who Gets What in My New York Divorce?


Over the term of a marriage, there are various assets that have been accrued that are the property of both parties, called marital property. This is the property that will be divided between the two spouses in divorce. Property division can be a complex and highly contested issue, particularly in high net worth cases, or when the family home or other shared assets are matters of contention. Any person planning to divorce in the State of New York should have their case evaluated by a legal professional that has a great deal of experience in property division issues, as there are a number of ways that property could be split. The marital residence as well as businesses, bank accounts, stock accounts, retirement accounts and other valuable items, and even pets, can be matters of concern to an individual who is facing divorce.

These issues are determined by first establishing what property is marital property, and what property is separate property. Generally, the property owned by one party prior to marriage is considered to be separate property. Separate property may also include property acquired by an inheritance or a gift from a party other than the spouse. Compensation for personal injury would also be another example of separate property. Even separate property could be in dispute, as over time, funds can be comingled, and one party may have contributed to the upkeep, improvement, or other contribution to the property, leading the court to conclude that the property has become marital property. The next step in deciding equitable distribution is to put a value on the specific assets that are involved in a case.

If the parties are in disagreement as to the value of a particular asset, the asset may have to be evaluated by an appraiser, accountant or other financial expert. In coming to a decision about equitable distribution, there are various factors that the court will consider, including, but not limited to the following: the income and property of each party at the time of the marriage as well as at the time of the commencement of a divorce action; the length of time the two parties have been married; whether there are children that still live at home; the contributions each spouse made to the marriage, including homemaker duties, as well as financial contributions; the nature of the asset; and the wasteful dissipation of assets by either party. When there are children still living at the family home, it is more likely that the custodial parent will be able to remain in that home, as it may be considered that this will be less stressful and disruptive to the children.

In such cases, the spouse may be granted exclusive use and occupancy of the family home until the children reach a certain age. Equitable distribution does not necessarily mean equal distribution. Generally, in marriages of a longer duration the marital assets are more likely to be divided equally. The first step in a divorce in which there are concerns about "who gets what" is to have the situation reviewed by an attorney that will advise you of how the court will likely come to a decision regarding the division of property. Although a formula could be applied to distribute the property, it could be far better to make these arrangements out of court. In either case, a Suffolk County divorce lawyer from the Rubenfeld Law Firm can assist you.

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