Contact A Saratoga County Divorce Modification Lawyer For Help With Marital Property Division
If youre going through a divorce, its important that you understand the difference between the various types of property. You want to protect whats yours. Make sure your property division after divorce is equitable and that you get what you deserve.
A Saratoga New York lawyer at The Colwell Law Group can assess your case and help you make the right decisions during a divorce. To schedule a confidential consultation, .
Property Identified As Separate Property By Written Agreement
This is where pre and post nuptial agreements come in. Two people who are or are getting married can enter into a legally binding contract, that, in the event of a divorce, they waive the right to certain income or assets or property that otherwise would have been part of the marital estate and subject to equitable distribution in a New York court.
As mentioned above, there are, however, exceptions to these basic separate property rules. Those exceptions include:
1) Appreciation in value of separate property where the other spouse contributed to the increase in value.
In other words, if the value of your separate property increases because of, at least in part, contributions from your spouse, that increased value is subject to equitable distribution. For example, if your premarital business increased in value because your spouse helped promote and advertise the business, they are entitled to part of the amount the business increased in value.
2) Comingling.
If you mix separate property with marital property, and it becomes so intermixed its impossible to trace the exact amount back to the original separate source, the entire asset or amount of funds becomes marital property. Therefore, every lawyer or attorney will tell their clients in a divorce case not to mix any funds, or to look for mixed funds if they are trying to establish that their spouses separate property actually belongs to both of them.
3) Deliberate Dissipation of Marital Assets
Dividing Assets In A Gray Divorce Can Be Complex
There was a time when a married couple that stayed together into their 50s was certain to remain together for life. Today, people who are 50 or older are getting divorced at twice the rate they did in 1990, according to the National Center for Family and Marriage Research at Bowling Green State University in Ohio.
In these so-called gray divorces, the stress of resolving child custody issues is typically avoided since children are grown. What becomes more critical when an older couple ends a marriage is the distribution of assets. One or both parties in a gray divorce may have substantial retirement savings that will be considered marital property. What appeared to be a substantial nest egg for two people nearing retirement must now be divided.
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How Is Marital Property Divided In A New York Divorce
When a marriage ends in divorce, it comes with a lot of difficult decisions and tough discussions that neither spouse ever anticipated having. Dividing a familys assets during a divorce can often add even more stress to an already complicated situation. To help you and your spouse through the process, heres everything you need to know about marital property and how it is divided in a divorce.
What is Marital Property?
Marital property, or is defined as property or cash acquired by one or both spouses during a marriage, regardless of whose name the asset is under. It is possible to exclude certain property from your marital estate by entering a marital agreement, such as a prenuptial or postnuptial agreement. Without one, all property obtained during the marriage is considered marital property, minus a few exceptions, including inheritances, personal injury/workers compensation, and third-party gifts.
Any property or cash previously owned or obtained prior to the marriage is considered separate property. This also includes any increase in value or payments made to your separate property during the marriage.
- This also includes any increase in value or payments made to your separate property during the marriage in most cases. Exceptions include when a spouse has added value to the separate property during the marriage, that spouse may negotiate for some amount of the added value.
The following are included in marital property:
What is Equitable Distribution?
How Hidden Assets Can Hurt You
The law entitles you to approximately one-half of your total combined assets in a divorce settlement. If your ex manages to pilfer assets before they can be accounted for, your share of the settlement could be far lower than it should be. If the assets are found, the judge may be able to mandate repayment to youbut if, for example, an ex-spouse drains a savings account and spends the money, it may be gone for good.
Another way hidden assets can harm you financially is if you rely on your ex for a certain amount of support for yourself and any children. Your alimony or child support is determined in part by the spouses ability to pay based on income. If an ex successfully understates income or overstates expenses, it could greatly reduce the amount of court-mandated support you receive.
As frequently as this activity occurs, hiding assets during a divorce is still a dangerous game, and any spouse caught doing so may have serious penalties to pay. Lets explore this common problem and what to do if you suspect its happening to you.
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Factor : The Duration Of The Marriage And The Age And Health Of Both Parties Drl 236 B
The duration of the marriage and the age and health will be a factor considered by the court pursuant to DRL 236B. For a very short marriage, courts will often tend to “unwind” it and put each party back in the position they would have been had there been no marriage not. For longer marriages, the court will divide the marital property it deems fair under the circumstances, and for long term marriages, a fifty fifty division of marital assets is the norm.
The age and health will be a factor, as a spouse who is unable to work due to health reasons or loss be unable to secure a profession due to age may result in a greater award of marital property. Any maintenance award must be taken into account as well.
Contact An Experienced New York Divorce Attorney
In New York, it is generally an error to consider the business in both the property division portion of the divorce and the maintenance portion. Other states may have a different approach, however. It is important to speak with an experienced divorce lawyer who has dealt with valuing businesses in New York.
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What Retirement Assets Are Marital Property
New York law states that all assets in retirement accounts, whether they are 401ks, IRAs, pension plans, profit sharing or provided in any other fashion, are subject to equitable distribution as long as they were accrued during the marriage. Assets brought into a marriage are not subject to division, which is why it is wise to create a prenuptial agreement when entering into a second marriage.
Types Of Properties Affected By Equitable Distribution
In the state of New York, only marital property is subject to equitable distribution. This means that only property/assets acquired during the marriage will be distributed among the divorcing spouses. It does not matter who purchased the property or acquired the asset, and it does not matter whose name is on the title or deedif a specific property is considered marital property, it is subject to equitable distribution.
In contrast, separate property, or property belonging only to one spouse, is not subject to equitable distribution in a divorce in New York. Such properties and assets will be granted to the individual to whom they belong.
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Divorce Laws In New York: What You Need To Know
In New York, a marriage can end through an annulment, legal separation or a divorce. New York has been a no-fault state since 2010, meaning that a couple only need cite that a marriage is irretrievably broken to end a marriage.
However, a spouse can also cite one of several at-fault reasons as well, such as cruelty, adultery, or a spouses incarceration. This is sometimes done to gain more favorable terms during a settlement.
As an equitable distribution state, the courts will attempt to distribute assets in a marriage in a fair and equitable way, but this does not necessarily mean that the split will be 50-50.
There are several rules governing the division of assets that can impact the final outcome in many possible ways. Here are some of the other common legal questions and major issues that come up during a divorce in New York:
A Valuation Date Of Marital Property
Before the court can determine a value for each asset, it must first establish which date should be used to set value. Under DRL 236 B the court is free to use any date between the commencement date of the matrimonial action to the date of trial. Each asset may have a different date to set value.
The general rule for setting a valuation date is the passive/active approach. Assets which appreciate passively through market forces are often valued at the date of trial, while assets which appreciate actively through contribution of the parties are often valued at the date of the commencement of the action. Needless to say that when the value of an asset fluctuates greatly, the date of valuation can become a highly contested issue.
It is possible to file a pre-trial motion which seeks to have the court set a valuation date, rather than have the issue of valuation dates determined at trial.
Appeals from non final orders such as the setting of valuation dates must not be taken lightly, as there are may procedural traps for the unwary which are beyond the scope of this article.
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Trusted Counsel For Complex Debt Division
When going through a divorce, the division of debts and property can be extremely confusing. This is especially true in situations involving marital debt orhigh net worth individuals.
When significant debts are involved, there are several things that need to be sorted out before thedivorce can be finalized.
Let our firm help you reach a favorable arrangement regarding the distribution of your marital debts
Factors Considered In Dividing Property
The types of property commonly divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, benefits and debts. The court treats debts the same as any other real, personal, or intangible property. Before dividing an asset or debt, the court will have to characterize it as either marital or separate and then assign ownership or responsibility for it based on a set of factors designed to give an equitable result.
Factors the court uses to determine a fair distribution of marital property include:
- each spouse’s income and property at the time of the marriage and at the time of the divorce
- the length of the marriage
- each spouse’s age, health, income, potential earnings or future financial circumstances and property
- if you have children, the court will consider the need of a custodial parent to occupy or own the marital home and its contents
- whether either spouse receives spousal maintenance in the divorce, and
- either spouse’s contributions as a homemaker.
In addition to any other factor that might be relevant to the particular circumstances of your marriage, the court specifically considers what the spouses may have lost at divorce, such as an interest in an inheritance, pension rights, or health insurance. It also evaluates future losses the spouses face in terms of taxes.
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Schedule A Free Consultation
Are you looking for a lawyer to help you negotiate a fair divorce settlement in Nassau County? If so, we urge you tocontact Jason M. Barbara & Associates, P.C. to arrange afree consultation. We will explain how New York’s laws of equitable distribution work and will give you a better idea of what to expect in your case.
How Is Property Divided In A New York Divorce
In the United States, we have two methods of dividing a married couple’s property in a divorce: equitable distribution and community property. New York follows the equitable distribution model, which means a married couple’s property is divided equitably or fairly.
Unlike community property states, such as California, Nevada, and Arizona, where a couple’s assets are split down the middle, equitable distribution states look at the totality of a couple’s circumstances and divides their marital property in a manner that is deemed fair.
Before New York became an equitable distribution state, it was a “common law property state.” Under the old system, when a couple divorced, their property was distributed to the spouse whose name was on the title. For instance, if a mortgage was titled in a wife’s name alone because her credit was better than her husband’s, she would get the house in the divorce.
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Factors That Go Into Dividing Property Equitably
If you think about it, the judge has quite a task in determining how to distribute your assets fairly . The court has many factors to consider, besides just the marital assets, and theres no ironclad criteria to determine what is fair. Lets look at just a few considerations:
- Income and/or potential income of each spouse. A higher-earning spouse may get a lesser share of the assets because of earning ability, while a spouse who is financially dependent or lacks earning potential may be awarded more of the physical property.
- Age and health of each spouse. A spouse in poor health or needing additional care may be awarded more assets, for example.
- Contribution of each spouse during the marriage. We already mentioned the example of one spouse investing value in the others separate property courts may also consider how much each partner also contributed to growing the familys combined assets.
- Extent to which either spouse squandered marital assets. Losses are taken into account as well as increases.
- Needs of the children and who will bear the most responsibility for them.
As complicated as this process can be, your divorce settlement plays a critical role in your ability to build a life after the divorceand you really only have one chance to get it right.
What Happens To The House And Other Real Estate During A Divorce
Who gets the house?
Besides custody disputes over the kids, the question of how real estate should be dividedespecially the marital houseis perhaps the most contentious issue most divorcing couples face. Its not just about the monetary value if it were just another asset, no one would care that much. Rather, the house carries sentimental value, usually for both spousesand if youve been raising kids, tearing them from their childhood home could be devastating.
Needless to say, theres a lot to iron out herebut truthfully, most of the challenge lies in finding a point of agreement with your ex. Here in New York, where we practice, the laws about asset distribution are fairly clear and balanced. The problem is that if you cant agree on who gets the house, the judge will decide for both of you, and neither of you might like the outcome. Lets discuss this tricky aspect of the divorce settlement so you know what to set your expectations and how to prepare for some potentially difficult discussions.
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How Is Property Divided Under Common Law
Under common law, marital property is divided in a manner that is considered fair, but not necessarily equal. Common law assumes that property bought during the marriage but only under one spouses name remains the property of that spouse. During the divorce process, these assets and the marital debt acquired by the spouses are divided based on a variety of factors, including each spouses investment in the marriage, if the court deems the division fair to both spouses.
The Division Of Marital Property
To determine how the equity will be divided among the two spouses, it must be determined what belongs to the entity of the marriage , what belongs to each spouse separately , and the quantity of each.
- – All the property that was purchased or earned during the marriage, regardless of who purchased it and what the title of that object or objects reads.
- Singular Property – This is property that belonged to you before the marriage, and may possibly include property that you received during the marriage. For example, any gifts you received, inheritances, or any personal injury benefits you may have received during your time together.
However, there are exceptions to that rule. For example, if you owned a cabin before you two were married, it would normally be considered yours to keep after the divorce is finalized. But if there were remodels made by your spouse and those refurbishments increased the property value of that cabin during the marriage, then that portion of the appreciation which was derived from the improvements is a marital asset.
Why? Because the increase in property value came directly from your spouse’s efforts.
You owned a separate condo in a new up-and-coming neighborhood and the property value increased by the inherent demand for property in that neighborhood, that condo remains singular property.
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Contact Our Albany Divorce Lawyers Today
At The Colwell Law Group, LLC, our dedicated divorce lawyers have helped many New York business owners through their divorce. If you have any questions about how divorce will affect your private business, please contact our team today to request your initial consultation. From our office in Albany, we serve clients throughout the Capital District region.