One of the biggest reasons divorce takes so long, is property and debt division. After all, it’s not just a relationship you’ve been sharing with your spouse, it’s money, property, and other tangible assets, too, and it can take a while to untangle all those years shared ownership. Especially when everything has to be analyzed beneath the nuanced scrutiny of New York’s equitable distribution laws.

The underlying goal of these rules, is to divide property in a way that sets both partners up for long term success. However, the process of getting there can sometimes be convoluted, which is why it’s a good idea to know how it works, before heading in.

Equitable Distribution: The Low Down

New York is an equitable distribution state. The famous saying is that “equitable does not necessarily mean equal,” however, most of the time the issues of property and debt division are resolved by an equal division of the marital assets (and debts).

The process of determining equitable distribution requires three distinct steps: classification, valuation, and division.

Classification: Separate Versus Marital Property

The first step in equitable distribution is determining what has to be distributed. In New York, only marital assets are subject to equitable distribution. Marital assets are any assets acquired from date of marriage to date you commence an action for divorce, sign a separation agreement, or any other agreed upon date. The manner in which title is held does not matter in classifying an asset as “marital” or “separate.” So, all that matters is when the asset was acquired – not whose name the asset is in (which means, yes, the bank account in your sole name may be a marital asset!). Marital assets includes real property (like your home) but also money in 401(k) accounts, as well as stocks, bonds, and any other investments you might have. If the accounts pre-date your wedding, whatever percentage you owned prior to marriage will be considered separate property, while the remainder is marital.

The only assets not subject to equitable distribution are assets that are classified as “separate property.” Separate property is all assets that were acquired before marriage, through inheritance, gift from someone other than your spouse, property designated your separate property in a prenuptial agreement, property you receive in exchange for your separate property, or personal injury settlement.

This classification might seem straightforward, but after years of mixing and interchanging separate and marital property, tracing ownership back to your pre-marriage days might be harder than you think.

Valuation: What is the Asset Worth

This step is often one of the simplest – in the valuation portion of equitable distribution, you simply determine the value of the individual assets. Most often, this is done by looking at the bank statement, retirement statement, or obtaining an appraisal of the marital residence. If, however, there is a business interest then a more in-depth, and formal, valuation may be required to make sure that the true value is realized and distributed between spouses.

Distribution: Who Gets What

Once prior steps are complete, it’s time to divvy things up.

So long as you have clear proof of ownership, any separate property will leave with whichever spouse brought it into the marriage. As for everything else, in lieu of a valid prenuptial agreement, all marital property will be subject to an equitable distribution between partners.

Determining What’s “Fair”

In order to ensure your division is as fair as possible, the court will analyze a number of individualized factors, some of which will include:

  • The education level, earning potential, and property owned by both partners;
    How long you were married;
    Your standard of living;
    Age and physical health;
    Any minor children, as well as custodial responsibilities;
    Spousal support;
    Pensions, insurance, and other benefits that your divorce might sever;
    Business ownerships, partnerships, or shares—both their value, and whether or not having an outside interest would affect said value;
    Taxes; and even,
    How responsible both of you have been in handling your finances over the years.

This list isn’t exhaustive, and, in fact, judges are free to evaluate any other factors they think are relevant to an equitable split. For example, the career sacrifices made on behalf of a homemaking spouse. Or, if one partner financially contributed to the other’s education. Even obligations one party might have to a disabled child or incapacitated parent might be relevant.

As mentioned above, most often, the result is an equal division of the assets. This may be equal division of each individual asset or a result which – overall results in an equal division (even though individual assets may not be equal).

Air it All Out

Speaking of success, one element of property division that is crucial to a hassle-free resolution, is not hiding anything.

This bit of advice can’t be stressed enough. Financial investigators are well versed in the tricks people pull to hide assets, so the chances of you getting away with something are slim, and the penalties severe. Lying in court—even if it’s “just” in your divorce—is still perjury. And attempting to conceal money, or even undermine the worth of something, is fraud. Both of these crimes carry hefty punishments, including fines, subpoenas of all tax and income records, and in some cases, even jail time. Even worse than all of the foregoing, though, is that if you are found to be lying your credibility with any judge is destroyed – which can have devastating consequences on your overall matter.

In the end, your honesty and forthcoming will earn you respect of the court, and a faster more economical resolution.

Fault and Property

Finally, it’s important to note, that marital fault – or the reason why the marriage is coming to an end – does not impact equitable distribution. Having said that, there are instances when a spouse’s “bad behavior” may impact equitable distribution – for example, a gambling problem which created significant debt may lead to an unequal division of the assets. This is one area where it is important to have full understanding of the nuances of the law as it applies to your situation. Therefore, it’s important to discuss these matters with your attorney, if you think they might come up in your divorce.

Lauren L. Hunt: New York Divorce Attorney

The process of dividing property can be painstaking and arduous, especially for those who were married a long time or have assets that may be part marital and part separate

If you have more questions about marital property in New York, and how these laws might affect your divorce, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and let me help you receive the property division that’s equitable for you.

Frequently Asked Questions

How are marital assets distributed?

Finally, once classification and valuation are complete, the court will divide marital property according to the rules of Equitable Distribution. Under these guidelines, the saying is that “equitable does not mean equal” however most of the time equitable distribution results in an equal division of the marital assets in New York State. The division of property and debts, and determination of whether it is an equal or unequal division, is based upon a series of factors that range from age and health of the parties to their economic or noneconomic contributions to the asset(s).

How are marital assets valued?
Once property has been classified, the court must assign a value to marital assets. Often, this can easily be accomplished through bank statements and account records. In some cases, it may also be necessary to hire an appraiser to get the approximate value of real property or to value a business. In regards to assets that were created prior to the marriage, but added to during the marriage, such as business interests, retirement accounts, and other investments, courts will determine value based on what percentage of the account or interest accumulated while the couple was married.
What is separate vs. marital property?

The first step of property division is to classify an asset’s ownership as either marital or separate. Property accumulated after marriage by either spouse is called marital property and both spouses have a right to it (regardless of whether the asset, paycheck, account, mortgage, or card is in just one person’s name). Therefore, even if you and your spouse have kept your bank (or other) accounts titled in your own name, if your paycheck was deposited into the account, it may be considered marital property (because your paycheck is marital property). Assets acquired prior to marriage, however, are considered separate property, and if kept separate through the marriage, will leave with whichever party brought it into the union. Gifts, inheritance, and personal injury money are also considered separate if kept separate.

How is property divided in divorce?

When couples divorce, one of the biggest issues a court must resolve is how to divide marital property and debts between the spouses. These considerations incorporate all tangible assets, real property (such as a house, or other land ownership), and finances that the couple accumulated while married, including bank accounts, stocks, bonds, retirement accounts, and investments, and even, debt. New York breaks this process down into three basic steps: 1) Classification; 2) Valuation; and 3) Division.

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