One of the most contentious aspects of an Albany divorce is how the assets are distributed. This applies not only to personal property or real property, but to debts as well. Determining assets for property distribution in Albany can be difficult without legal help. If you are anticipating a dispute over how the assets and debts in your marriage are going to be distributed, consider retaining a local divorce attorney who could advise you on the assets you should fight for and the proper documentation to prove whether they are a separate or a marital asset.
Assets are distributed based on when they are acquired. Property and assets can be either separate or marital. Separate assets are generally acquired prior to the marriage. This can include anything that was inherited or earned, such as real property (a house or land) or any personal property that is owned.
Marital assets are presumed to have been earned between the date of the marriage and the date that they filed for divorce. Regardless of whose name the property is in, whether it is real property or personal property, if it is acquired during the marriage, the court in Albany is going to presume that it is a marital asset that needs to be divided.
The courts will generally seek to equally divide the marital assets and debts. However, the court is not bound to make an equal 50/50 distribution. They can look to ensure that the distribution of assets is equitable, possibly giving more to one side if they feel it is deserved.
The New York State Domestic Relations Law, which addresses the distribution of marital assets and debts, defines the marital estate as the assets acquired from the date of marriage to the date someone filed a summons for divorce. Any asset or debt acquired or incurred during the term of the marriage is presumed to be a marital asset or debt subject to equitable distribution. That presumption can be overcome by proof that an asset or debt is a separate property of a spouse. A skilled Albany attorney could assist in proving or disproving that an asset or debt is one spouse’s property and should not be subject to division in a divorce.
A prenuptial (“prenup”) agreement is a pre-marital contract. The couple will enter into the contract prior to the date of marriage so that people who have certain preexisting assets can have them protected in the event of a divorce. The contract can be incorporated into a divorce so that to the couple does not have to re-litigate those issues. The prenup is designed to be upheld during the divorce without a fight for those assets or a court decision.
A postnuptial (“postnup”) agreement is a contract that a couple entered into after the date of marriage. It serves a similar purpose to a prenup where the couple enters into this contract as to how they would divide certain property or assets in the event of a divorce. They can address retirement assets or child custody in this agreement as well. A spouse could seek to have that the postnuptial agreement made part of the divorce so that they do not have to litigate those issues in the future.
Similar to property and other assets that are acquired within the marriage, there is a presumption that the debt is jointly owned by the couple. A mortgage, a loan, or credit card debt acquired during the marriage would likely have to be divided between the parties.
However, there may be a dispute as to what constitutes marital debt. The burden would rest with the person who is disputing it to show that the debt was not acquired for legitimate marital purposes. In other words, it was for something that only benefited the party that acquired it.
If a prenup or postnup does not exist to provide a framework for determining assets in your divorce, a local lawyer could provide assistance. Personal property, real property, and debts may not always have to be distributed equally. Reach out today to learn about the nuances of determining assets for property distribution in Albany.
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