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Division of Property in a Divorce

One of the first things individuals may ask when going through a divorce is who gets what? This question is one of the most frequent questions asked by divorcing couples, and the answer is covered by New York State’s Domestic Relations Law (DRL). New York’s DRL sets forth that New York State is an equitable distribution state.

This means that marital property will be divided in a way that is equitable, or fair. This is determined by the court based on a set of factors that look at what each spouse contributed to the marriage, and what each spouse will need going forward. Therefore, the division does not have to be equal to be fair under New York Law.

First of all, the court will only become involved in the division of property if you are unable to work together with your spouse to resolve property disputes. Throughout the divorce process there will be many opportunities to decide with your spouse how you will distribute the marital property. If you can come to an agreement, the court will accept a written separation agreement on how to divide the property. If there is no agreement, then the court will step in and divide the property for you. The types of property often divided by the court include homes, jewelry, income, benefits, and even debts. Like assets, debts are first classified as marital or separate property and then divided.

It is important to first recognize that only marital property will be divided. Therefore, before stepping into a courtroom, the spouses should determine which property belongs to the marriage, which belongs to each spouse separately, and how much of it there is.

The DRL defines marital property as all property acquired or earned during the marriage, regardless of what the title says. Conversely, separate property is defined as property owned before marriage. Gifts, inheritance, and personal injury awards received during a marriage are also often found to be separate property. There are some instances where an increase in value of separate property can be considered marital property. This usually occurs when a spouse engages in activity to increase the value of separate property, such as fixing up a vacation home. You should consult an attorney if you are unsure if an increased value will be considered marital property.

Once the classification of property has been made, the court will address factors to determine the proper distribution of the marital assets. In dividing the property, the court will look at factors such as the length of the marriage; each spouse’s age, health, income, potential earnings or future financial circumstances; and the amount of separate property. The court will also look as to what each spouse contributed to the acquisition of the marital property held by the spouses. Additionally, the parent awarded custody of children is more likely to keep a marital home while they raise the children. Fault in causing the marriage to fail is not part of the calculation. However, if a spouse wasted marital assets, the court can award less marital property to that spouse.

Navigating the complex legalities surrounding divorce and child custody can be difficult. The experienced Long Island divorce attorneys at Larry McCord & Associates, LLC can guide you through the divorce process and child custody proceedings. Please contact Larry McCord and Associates, LLC at (631) 643-3084 Larry McCord and Associates, LLC at (631) 643-3084 to learn more about the firm’s services and approach to divorce and family law.

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