When you married, both you and your spouse brought your own assets and debts into the marriage. Some call this non-marital property. New York deems these items as separate property and separate debts.
And through the course of the marriage, you and your spouse acquired other property - maybe a house, vehicle loans, televisions and entertainment equipment, etc. Marital property purchased or acquired after the date of marriage is put in a proverbial pot known as the marital estate. Debts acquired during the marriage are treated in the same manner as assets; they are part of the marital estate.
When you go through a divorce, the court must evaluate and value the entire marital estate in order to divide assets and debts equitably. Most think the term "fair and equitable" means the marital estate will be divided in an equal 50/50 split - however, this is not necessarily the case.
What Exactly Is Equitable Distribution?
New York courts determine a fair and equitable distribution of marital property in a divorce by considering 13 factors.
- The parties' incomes before and during until the date of separation.
- The current health of each party and how long they have been married.
- The length of the marriage.
- The needs of the children as they relate to the marital homestead when determining who will retain possession of the house and any household goods.
- Whether a spouse has lost inheritance or pension rights because of the divorce.
- A loss in health insurance for one or both parties.
- Whether there will be an award of child support or spousal maintenance (alimony).
- Whether one spouse contributed to the other's ability to earn more by obtaining a degree or other specialized training.
- If the property can easily be converted to cash.
- The future economic probability for each spouse.
- Whether business or other asset values are too difficult to determine.
- Each person's tax consequences.
- Whether either spouse acted unethically by wasting marital property while the divorce is pending - that is, whether either party transferred, sold or gave away marital property for less than fair market value.
After evaluating the value of the marital estate and considering the above factors, the court will decide which party receives ownership of certain property. For example, in some instances, one may receive the house while the other keeps the business and recreational vehicles.
Each case is unique - and a 50/50 split is never guaranteed. Contact a qualified family law or divorce attorney to find out how your marital property is likely to be split in a divorce.