Division of Property in New York

1. What is “Equitable Distribution” in the Context of a New York Divorce?

Equitable distribution refers to the division of marital assets and liabilities in a manner deemed fair and just by the court, rather than strictly equal. The court considers various factors, including the length of the marriage, each party’s financial situation, contributions to the marital estate, and more, to determine an equitable distribution.

2. What is Considered Marital Property in New York?

Marital property generally includes assets and debts acquired by either spouse during the marriage, regardless of who holds title to the property. This can include income, real estate, investments, retirement accounts, stock accounts, employment benefits and more.

3. What is Considered Separate Property in New York?

Separate property typically includes assets and debts acquired by either spouse before the marriage, gifts and inheritances received by one spouse during the marriage, and personal injury awards received by one spouse, among other things. Separate property is generally not subject to division in a divorce.

4. How Are Assets and Liabilities Valued in Divorce?

Assets and liabilities are typically valued based on their fair market value at the time of the divorce. This may require appraisals for real estate, businesses, or valuable personal property, and assessments for debts.

5. What if One Spouse Hides Assets During Divorce Proceedings?

Unfortunately, it is not uncomment when a spouse may attempt to conceal assets to avoid equitable distribution. It is essential to work with experienced legal counsel who can uncover hidden assets and ensure a fair division.

6. Can a Prenuptial or Postnuptial Agreement Protect My Pre-marital and Post-marital Assets in a Divorce?

Yes, a well-drafted prenuptial or postnuptial agreement can specify how pre-marital and certain post-marital assets should be divided in the event of divorce, potentially shielding them from equitable distribution under New York law. It is essential that the agreement meets all legal requirements to be enforceable.

7. What Factors Does the Court Consider When Determining Equitable Distribution?

The court considers various factors, including the income and property of each spouse at the time of the marriage and divorce, the duration of the marriage, the age and health of both parties, the need for the custodial parent to occupy or own the marital residence, and more.

8. I Am a Wealthy Spouse and Have Significant Assets Acquired During the Marriage. Will These Assets Be Subject to Equitable Distribution in a New York Divorce?

In New York, assets acquired during the marriage, regardless of the individual spouse’s wealth, are generally considered marital property and subject to equitable distribution. However, the court may consider the contributions of each spouse to the acquisition of assets and other relevant factors when determining a fair division.

9. How Can I Protect My Business Interests Acquired During the Marriage in a Divorce?

To protect business interests acquired during the marriage, it is advisable to have a clear valuation of the business and, if possible, establish the business as separate property through a prenuptial or postnuptial agreement. Alternatively, buy-sell agreements, trusts, or other legal structures may be utilized to safeguard business assets.

10. What if My Spouse Contributed Little to Our Marital Assets? Will This Be Considered in the Division of Assets?

The court may consider each spouse’s contributions to the marital estate, both financial and non-financial, when determining equitable distribution. However, New York law generally presumes that both spouses contributed equally to the marital partnership unless proven otherwise.

11. Can My Spouse Claim a Share of My Inheritance or Gifts Received During the Marriage?

Inheritances and gifts received by one spouse during the marriage are typically considered separate property and may be exempt from equitable distribution unless they have been commingled with marital assets or used for the benefit of the marriage.

12. How Can I Ensure That My Children’s Inheritance is Protected in a Divorce?

To protect assets intended for your children’s inheritance, consider establishing trusts or other legal instruments that clearly designate the assets as separate property and outline their intended distribution. A well-crafted prenuptial or postnuptial agreement may also provide additional protection.

13. Can a Discretionary Trust Help Protect My Assets in a Divorce?

A discretionary trust can be a useful tool to protect assets from equitable distribution in a divorce by placing them under the control of a trustee, who has the discretion to distribute the assets for the beneficiary’s benefit without transferring ownership to the beneficiary directly.

14. How Can a Forensic Accountant Assist in My Divorce Case as a Wealthy Spouse?

A forensic accountant can play a crucial role in valuing complex assets, tracing financial transactions, uncovering hidden assets, and providing expert testimony to support your case, ensuring a fair and accurate division of assets tailored to your unique financial situation.

15. How Can an Experienced Divorce Attorney Help With Asset and Liability Division?

An experienced divorce attorney can provide invaluable guidance, assist with asset valuation, uncover hidden assets, negotiate on your behalf, and, if necessary, represent you in court to ensure a fair and equitable division of assets and liabilities tailored to your unique circumstances.

For personalized guidance and expert assistance with the asset and liability division in your New York divorce, contact Rudyuk Law Firm, P.C. to schedule a strategy session during which an attorney will help you understand your rights and liabilities arising out of the marriage.