Beyond the emotional hurdles presented by a breakup, there are more practical issues to consider during a divorce. Who gets the house? Which person will drive away with the new car? Will you be saddled with debt from your former partner’s bad decisions? Exactly how property is divvied up depends on a wide range of factors, and an attorney can help you navigate this process while protecting your legal rights.
How New York Courts Decide to Split Up Property in a Divorce
In many cases, it’s a better idea to come up with your own property distribution agreement through mediation. A written agreement can be submitted to the court by your respective attorneys containing mutual decisions with your spouse on how assets should be split.
Of course, divorce is frequently a messy process that can get heated, and that may not be a viable solution. When mediation isn’t possible and you can’t reach an agreement with your spouse, the court will step in and make the divisions for you using a process known as equitable division.
It’s important to understand ahead of time that “equitable” means fair—but not necessarily equal. The split is unlikely to be 50/50. This is one major element of the divorce process that is less emotional and more mathematical. With the possible exception of wasting assets, improper behavior on one spouse’s part isn’t usually a major part of the court’s decision-making process. Instead, the court decides on how to distribute assets based on:
- Contributions during the marriage
- Current health and age
- Each spouse’s role in homemaking and child-rearing
- Expected future income and earnings
- If assets were wasted during the marriage, or otherwise sold or given away to try to get around distribution by the court
- Income and amount of property you owned when you were first married, as well as at the time of the divorce proceedings
- Potential losses through the divorce, such as health insurance or tax liability
- Spousal support provided to the other party
- The timespan of the marriage (extremely short marriages may see a lower percentage of shared property than decades-long relationships)
- Whether the custodial parent needs a house for raising children
Determining What Property and Assets Will Be Divided
The divorce court only makes these decisions about marital property, as opposed to assets that belong solely to one spouse. The process doesn’t include things either of you owned prior to getting married. Certain assets specifically granted to one person are also typically exempt, such as a personal injury judgment from a court or an inheritance. Marital property that the court will divide includes:
- Any property acquired during the marriage, even if the title is only in one person’s name
- Gifts between spouses
- Retirement assets
How these assets are divided can be complicated by a number of factors, such as if the property you owned from before the marriage increased in value due to the efforts of your spouse. In the case of owning a business, the court may decree you need to have the business valuated and then one spouse will pay the other a portion of that value rather than breaking up the venture.
Which specific debts count as marital property or belong to a single spouse can also vary depending on how the debt was accrued, such as if a credit card was used for family purchases or exclusively for one spouse’s personal use. For the best possible outcome, you want an attorney on your side to properly advocate for your rights throughout this process and ensure that all property and asset valuations are verified.
Talk to an Experienced New York Divorce Lawyer
Ideally, these issues of asset distribution can be decided on ahead of time with pre- or post-nuptial agreements. Obviously, that isn’t always the case, however. If you are in the process of a divorce, you should talk to an attorney as soon as possible for assistance mediating property distribution. Call or message Alatsas Law Firm today.