Who will get the new car? What is equitable distribution? What about my pension? When facing a divorce, many such questions can come to mind, and many incorrect assumptions abound. Some people believe that all assets will be divided equally between the husband and wife. Others think that decisions will be made based on the name on the title of the property. But in the state of New York, neither of these scenarios is necessarily true. Since 1980, New York has been what is known as an equitable distribution state. This term means that if a couple cannot come to an agreement on the division of their assets, the judge will divide their properties based on what is fair to both parties — equitable.
Marital Property vs. Separate Property
The first thing the judge must determine is which assets are marital property and which are separate property. Only those assets deemed to be marital property are divided during the divorce proceedings. Separate property is left in the ownership of each spouse. In general, separate property refers to any asset owned by one spouse prior to the marriage. Conversely, marital property is those assets purchased during the marriage. However, determining the category of some assets can be challenging. For instance, a car purchased during the marriage may be considered separate property if it was purchased using only funds held by one spouse prior to the marriage. On the other hand, money accumulated in one spouse’s pension fund is considered marital property since both partners had the expectation of being able to use that money.
Factors Under Consideration
Once the marital property is identified, it must be divided in a way that is fair to both parties. In order to make this decision, the judge will examine a number of factors including the age and health of each spouse, the likely future financial circumstances of each, and any misconduct of either party in regard to their assets. Beyond the list of factors included in the law, the judge is entitled to take into account any other factor he/she deems to be a pertinent consideration. These decisions can become quite difficult and complex, especially when businesses or professional practices are involved.
All of these factors can combine to create a very challenging divorce proceeding and may result in one spouse receiving fewer assets than they anticipated. Experienced divorce attorneys like those at Witkon Law understand the peculiarities of equitable distribution and work to ensure that their clients are treated fairly. Contact us today for an appointment to discuss your situation.