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Understanding How Property Division Works During a Divorce

Who Makes the Decisions?

New York is an equitable distribution state. This means that all marital property should be distributed fairly between the concerned parties of a divorce. While many assume that an equitable division of property represents a 50/50 split of marital assets, this is not always the case. Additionally, only marital property will be divided, and separate property will remain separate.

If you and your spouse are having an uncontested divorce, you will develop your property division agreement with your lawyers, and the courts will not be directly involved in who gets what. However, if you and your spouse cannot agree, you will go through a contested divorce, and you will have to litigate your property division in court. It is not uncommon for property division to result in a dispute, especially when dealing with high-net-worth divorce cases.

What Is Marital Property?

According to New York law, marital property is defined as all property acquired during the marriage and before executing a separation agreement. Examples of marital property include bank accounts, artwork, cars, and retirement accounts. Even gifts given to each other during the marriage are considered marital property.

Property considered as separate includes:

  • Property acquired before the marriage
  • Property acquired through inheritance or as a gift from someone outside the marriage
  • Personal injury compensation
  • Property identified as separate property in a written agreement

Determining marital property can get quite complicated, especially when looking at things like real estate. Suppose you purchased a home after you were married, but you used some of your separate property to make the down payment. The house itself may be considered marital property, minus the contribution of the individual property.

How Marital Agreements Affect Property Division

If you and your spouse have a pre- or postnuptial agreement in place, this may affect how your marital property is divided. In some cases, marital agreements make provisions to keep certain property separate or designate a separate property as a marital asset. Most prenuptial agreements also have conditions for how property should be divided in the event of a divorce. Typically, the courts will recognize the terms in these agreements, even if they differ from how the courts would ordinarily divide the marital property in question.

If you are going through a divorce and are concerned about how a pre- or postnuptial agreement will affect you, reach out to one of the lawyers at Letterio & Haug, LLP.

Tips for Successful Property Division

Property division is one of the most difficult parts of the divorce process. Besides your money and other financial assets, it also involves your personal property, homes, vehicles, and other belongings. Your pets may even be affected. Emotions are already running high, and now you must deal with items you are likely sentimentally attached to.

To prepare for the property division process, you should:

  • Take an inventory of all of your personal possessions
  • Make a note of all items you owned before the marriage
  • Do not attempt to hide assets
  • Review any existing marital agreements
  • Consider if any items have a logical owner
  • Decide what is truly worth fighting for and what you can let go

You should also do your best to remain calm and civil when negotiating. While this is easier said than done, if you can get into a calm mindset before negotiating, the process may go a little smoother. Remember, just as you are emotionally invested in all of this, so is the other person. As difficult as it is, try to approach negotiations with understanding.

Property Division in a Contested Divorce

When spouses can’t agree on how to divide marital property, they will go through the contested divorce process, including property division litigation. Again, it is important to remember that this does not mean that the courts will automatically split marital property exactly down the middle. Instead, they will hear both sides and look at the entire case to make their determination. Their goal is to arrive at a fair resolution.

Things the judge will consider when litigating your property division include:

  • The income level of each spouse
  • Debts accrued before and during the marriage
  • The length of the marriage
  • Whether or not spousal support was awarded
  • The separate property holdings of each spouse
  • Any special needs of one or both individuals
  • The age and health of each spouse

It can be very difficult to relinquish control to the courts in these matters, but sometimes it is necessary and the only way to ensure a fair property division. However, if you are going through a contested divorce, you should hire an experienced attorney to represent you in court. Our lawyers are prepared to fight for your best interests and are ready to help you resolve your property division dispute.

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