How Marital Property Is Divided In Divorce
Whether you are negotiating a divorce settlement outside of the courtroom or involved in a litigated divorce, one of the most important aspects of the proceedings will be the division of property. At the law firm of Robert G. Smith, PLLC, you will work with a highly trained and focused professionals who know New York law and utilize experienced valuation experts. As a divorce attorney, I will help you make the best decisions that will benefit you for the long term. Call me at 212-499-0940.
Understanding Equitable Distribution
Equitable distribution does not require the court to equally divide or distribute the marital property. If there is valid and enforceable prenuptial agreement or postnuptial agreement, the court will honor it. If there is no settlement, the court will equitably distribute the marital property according to the following 14 statutory factors:
- The income and property of each party at the time of marriage, and at the time of the commencement of the action
- The duration of the marriage and the age and health of both parties
- The need of a custodial parent to occupy or own the marital residence and to use or own its household effects
- The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution
- The loss of health insurance benefits upon dissolution of the marriage
- Any award of maintenance under subdivision six of this part
- Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party
- The liquid or non-liquid character of all marital property
- The probable future financial circumstances of each party
- The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party
- The tax consequences to each party
- The wasteful dissipation of assets by either spouse
- Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration
- Any other factor that the court shall expressly find to be just and proper
This system does allow property distributions that are not 50/50. It also allows for greater tailoring of the property division for divorcing couples, making it more likely that each spouse will get exactly what he or she is entitled to. The issues to be litigated (or settled) include:
- What is marital property and what is separate property?
- What happens to the primary marital residence?
- How will the marital business, investments and retirement plans be divided?
These problems, of course, can be more complicated when dealing with high net worth divorce situations. For each of the 14 statutory factors the courts have elements, standards and precedent that guide and inform the process.
Protecting Your Assets
As we develop a strategy for marital asset distribution in your divorce, the main purpose, of course, is to obtain the assets you are entitled to, regardless of how title is held, and to protect the assets you already have from your soon-to-be-former-spouse and perhaps from the claims for legal fees generated during the divorce process.
The adversarial nature of divorce litigation is in some ways analogous to a war, with one important exception: In this process there can be perfect military intelligence. The person with whom you once shared intimate secrets and financial plans has now become your opponent. That, and the emotionally charged nature of the conflict, can add a great temptation to fight every battle large and small to the bitter end.
It can be very tempting to the uninitiated to extend the conflict resolution process or to waste resources to win a small battle in the overall divorce litigation. One of the contributions that I can make as a New York property division lawyer is my 35 years of experience. I know how to look at the big picture clearly, and I am committed to giving my clients valuable insight into the cost-benefit ratio of their decisions. Of course in child custody litigation monetary considerations do not control the outcome. In other aspects of your divorce, extending the life of the divorce litigation will be more costly in the long run. This is sometimes difficult to see. I help my clients to consider the big picture and to make rational and intelligent decisions during the course of divorce litigation.