According to New York law, judges overseeing a divorce must divide property equitably. Equitable does not mean equal, and the basis of this determination is what a judge believes is the most fair resolution based on the circumstances.
Some things that the court will consider when deciding how to equitably distribute assets are:
Each spouse’s income when they filed for divorce.
How long the individuals were married.
The ages and health of each spouse.
If the parent with custody of any children will need to live in the house or use its amenities.
If either spouse will lose health insurance, inheritance rights, or their pension because of the divorce.
What each party’s financial situation will likely look like in the future.
What tax consequences each spouse might face.
If either spouse has been wasteful with marital assets.
If either spouse has tried to sell, transfer, or otherwise get rid of marital property while planning for a divorce.
Any other factor the court might deem important to consider.
Under New York Domestic Relations Law § 236 (B), marital property includes that which was acquired during the marriage. Examples of marital property include real estate, cars, bank accounts, retirement accounts, pensions, art, jewelry and businesses.
In general, each spouse’s separate property will not be subject to equitable distribution. Separate property typically consists of anything either spouse had before entering the marriage. There are exceptions, however, and some property acquired during the marriage such as inheritances or compensation from a personal injury lawsuit may be considered separate. Separate property can also be transformed into marital property in some circumstances, such as when separate property was mixed with marital property.
DIVISION OF DEBTS IN A NY DIVORCE
Debts are treated like assets. They will be distributed equitably between spouses. However, before that happens, the court must decide whether they are marital or separate property. Once that determination is made, marital debt will be divided fairly, and separate debt will go back to the spouse who acquired it.
Achieving Fairness through Distributive Awards Distributing property can be complex, and, in some cases, it may not be feasible to divide assets equitably. For instance, it may be impractical to divide a business or corporation.
When property distribution becomes burdensome because of the nature of the assets, the court may issue a distributive award. Defined in New York Domestic Law § 236 (B), a distributive award is payment one spouse makes to another – whether in a lump sum or spread out over time – to supplement the equitable division of property.