As much as we all enjoy a fairytale ending, not all marriages last. Nearly half of all marriages end in divorce. Many of those who divorce have been together for many years. During this time, they often have accumulated numerous assets. They may have vehicles, houses, furniture, and even kids.
Splitting these assets is no easy task. How do the courts do it? In a divorce or separation, who gets what?
There is no easy formula. In uncontested divorces, the couple works things out on their own. They negotiate and come up with an agreement that works well for them. Most divorces, however, end up being contested, with courts having to divide assets fairly.
Who Gets the House in a Divorce?
One of the most common questions in a divorce is, who gets the house? This will depend on your situation as well as the laws in your state. New York is an equitable distribution state. This means that the court will divide the property equitably, or as fairly as possible. This does not mean that property will be split 50/50, however. Your assets will be divided based on each person’s contribution to the marriage. For example, a working wife who paid all the bills will be entitled to a larger share of the assets than an unemployed husband who stayed at home.
What if you have kids? Who gets the house in a divorce with children? This depends on if the house is separate or marital property. Separate property consists of assets owned before the couple married. If the husband bought the home before the marriage, he will likely get to keep it after the divorce. However, if the home is considered marital property, then the parent who has custody of the children often gets to keep the home. If neither party wants the home, then it can be sold.
Other Assets: Who Gets What in a Divorce?
When looking at divisions in a divorce property and child custody are heavily focused on. However, there are other important shared assets, such as retirement accounts and 401(k) plans that need to be divided as well. New York law states that pensions earned during a marriage may be split equally in a divorce or by using a court formula for this division. Your divorce lawyer will help ensure that documentation and retirement asset distribution agreements are received and accepted by plan administrators prior to finalization of the divorce.
Prenuptial and Postnuptial Agreements
Property division can be decided ahead of time through a document called a prenuptial agreement. This document is created before the marriage and outlines who gets what should the marriage end in divorce. There are also postnuptial agreements, which are drafted after the marriage but before the divorce is initiated.
Prenuptial and postnuptial agreements are usually upheld by the court unless they are created illegally. For example, if a prenup is signed without legal representation, is signed under force, or is fraudulent, it will not hold up in court. A prenup also cannot contain rules such as forbidding child support, visits from in-laws, frequency of sexual activity, or punishment for weight gain. The court will throw out prenups with these types of rules.
Divorces can be very stressful, especially in matters regarding property division. It is not uncommon for spouses to fight over valuable assets, causing the divorce process to last much longer than it should.
Schedule a Consultation Today with our New York Estate Planning Attorney
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We know that dealing with legal issues affecting your family can be stressful, but we will proactively work to provide you with peace of mind as you move forward. If you’re in need of assistance with a divorce or family law concern, contact us today at 718-233-2903 to schedule a free, no-obligation initial consultation.