Property division is quite often the most difficult process of divorce, especially when child custody is not an issue. Property that may be divided includes the spouses’ home, cars, boats, furniture, real estate, retirement savings, investments, earned income, and more. While New York courts do not necessarily divide property equally or evenly, the court seeks to make an equitable division.
A divorce attorney at The Colwell Law Group, PLLC can help you understand what to expect when it comes to property division, as well as the exceptions and characterizations of your assets. Contact our Albany property division lawyers today to learn more about our services.
How Will Separate and Marital Property Be Divided?
In property division, “equitable” does not mean “equal.” Numerous factors play into determining the division of marital property. The ultimate goal of equitable asset and debt division is to split property acquired during the marriage fairly – not necessarily evenly. Most states have their own sets of laws and rules regulating property division during divorce, and working with an attorney that has extensive knowledge of current New York law is critical. Our property division attorneys work to ensure that our clients walk away with what is most fair in their particular circumstance.
To learn more about how property distribution will work in your case, schedule a consultation with our experienced Albany property division lawyers.
Will the Court Always Make the Final Decision?
If you and your spouse come to an agreement on your property division, the court does not need to intervene. However, if you can only come to a partial agreement on your property and belongings, the court will have the final say. An experienced attorney is necessary in these cases in order to advocate on your behalf.
Our Albany property division attorneys do their best to negotiate fair out-of-court property distribution settlements for our clients. When you work with our firm, we’ll build divorce strategies that focus on your personal goals and unique circumstances. For example, while mediation is often beneficial during property distribution negotiations, it’s not always in your best interest. We’ll always take the time necessary to understand your case and priorities, and use these as the foundation of everything we do.
Defining Equitable Distribution
In a New York divorce, you must divide your marital property under a theory of equitable distribution. Unlike some states, you won’t simply split your property 50/50. Instead, you’ll need to negotiate a fair distribution that considers your circumstances and resources. Many times, this division is not even.
There are two types of property: separate and marital, according to New York Courts. Separate property is any property that either spouse owns before the marriage, an inheritance, gifts received during the marriage from parties other than the other spouse, or injury payments that a spouse received during the marriage (from a settlement or a lawsuit).
Marital property, on the other hand, is all property that was earned or acquired during the marriage, regardless of the name attached to that particular property. This includes pension and retirement plans; a 401K plan may be in one spouse’s name, but the state may not agree that it should all go to that spouse. As stated above, marital property is not necessarily divided evenly, but what is deemed to be equitable or most fair. The judge presiding over your divorce case must be made aware of all property and debt owned by each spouse; no assets should ever be hidden.
How Courts Determine Separate vs. Marital Property During Divorce
Equitable property division in a divorce requires classification of separate vs. marital property. Simply stated, anything an individual spouse owned prior to the date of marriage that has not been commingled remains separate property. Anything acquired or contracted during the marriage is presumed marital property and therefore is subject to division between the spouses. This can include retirement funds, 401(k)s, cars, the family house and other marital assets.
Many couples don’t realize that debt is also marital property. If you and your spouse accumulated significant debt during your marriage, you’ll also need to divide it up — using New York’s equitable distribution policies.
The first step in any property distribution is identifying exactly which assets are marital and separate property. Each spouse will need to make a series of financial disclosures to the court and their spouse’s attorney. If you have questions about these disclosures or anticipate a dispute about an asset’s classification as either marital or separate property, contact an Albany lawyer knowledgeable about property division immediately.
How Equitable Property Division Works in Albany
Once the court and parties have classified the couple’s property as marital and separate, they need to split their marital property fairly. The court considers numerous factors to determine the equitable division of assets and debt:
Health and age of each spouse
Property and income of each party at all times during the marriage
Length or duration of the marriage
Loss of inheritance, pension, disability or retirement rights upon divorce
Potential rights to maintenance, alimony or support
Other property distribution (through spousal maintenance or other assets held as separate property)
If children are involved, whether the custodial parent needs the marital home and household goods
The probable financial circumstances of each spouse after the divorce
Whether one of the spouse’s attempted to hide or devalue marital assets in anticipation of the divorce
The judge also has broad discretion and can consider other relevant factors that may apply in your divorce.
Although the court will make final decisions regarding property division in divorce, it is important to have an experienced family law attorney advocating on your behalf. At The Colwell Law Group, LLC, our local attorneys evaluate your situation and present your case to the court to seek a fair division of property.
What If We Entered Into a Nuptial Agreement?
Many couples enter into nuptial agreements before or during their marriage. A pre-nuptial or post-nuptial agreement identifies specific assets or debts as either separate or marital property. For this reason, a valid nuptial agreement can significantly streamline your property distribution during a divorce, since you won’t have to argue about the classification of your property.
If you signed a nuptial agreement, make sure you provide a copy to your property division lawyer. We will carefully review the document to assess its validity and terms. Sometimes, a nuptial agreement is invalid or contains terms and conditions that are not enforceable. For more information and a confidential evaluation, contact The Colwell Law Group, LLC today.
Disposition of Community Property Rights at Death Act and Defining Community Property
A common question those have who are going through a divorce is whether or not community property is recognized in the state of New York. The short answer is no, however, The Disposition of Community Property Rights at Death Act of 1971 preserves the community property rights of each spouse when they move from a state that does recognize community property to one that does not, such as New York.
For example, if a couple was married and lived in a state that recognizes community property and moved to New York and was then divorced, the 1971 Act would not deprive the spouses of their preexisting community property rights under the former state’s laws. Community property is any property that is owned jointly between the two spouses. Usually included in community property is debt incurred during the marriage, income earned by either spouse, and personal and real property that was acquired during the marriage, such as real estate, vehicles, furniture, sports equipment, home appliances, and more.
Get Started With a Consultation With an Albany Property Division Attorney
If you have questions about equitable property distribution, we’d love to give you advice. When you come to our office in Albany for a consultation, we will further explain property division in divorce — including the exceptions and characterizations of your assets. To schedule an appointment, contact us today. Let our Albany property division lawyers advise you on the benefits, principles and problems you may face when characterizing these assets.
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