Nobody says “I do” expecting that one day they’ll say “I can’t.”  Unfortunately, current trends indicate roughly 50% of marriages today end in divorce.  The media has been reporting an anticipated rise in that number due to COVID-19. One of the largest concerns looming over a divorcing couple is what happens to each spouse’s property once they have untangled their assets.

Equitable Distribution

Because New York is not a “community property” state, it is common for a significant portion of a couple’s assets to be marital property.  What is less common, is an even split of property between divorcing spouses.  Judges in New York apply a doctrine known as “Equitable Distribution” when determining how property should be divided.  Some of the key factors considered in determining what would be an equitable distribution of property are (1) each spouse’s income when they married and when they filed for divorce, (2) the duration of the marriage, (3) the age and health of each spouse, and (4) whether one spouse will have custody of the couple’s children and need to live in the family home.

What Property is Subject to Equitable Distribution?

Courts in New York only divide marital property, while separate property remains with the individual spouse who owns it.  Besides a few exceptions, marital property consists of all property acquired by either spouse during the marriage.  This includes, but is not limited to, (1) the income of each spouse earned during the marriage, (2) any property purchased with either spouse’s income during the marriage, (3) the retirement benefits of each spouse earned during the marriage, and (4) any appreciation earned on marital property during the marriage.

So What Property is Exempt?

                Generally, property acquired prior to the marriage is not subject to equitable distribution.  Separate property also includes certain categories of assets acquired during the marriage.  Some of those categories are: (1) property received individually as an inheritance or a gift, unless it was given to them by the other spouse, (2) compensation for personal injuries, and (3) any property characterized as separate in a valid prenuptial agreement or written contract.

I am getting divorced, what’s next?

While the above applies generally to most divorces, each case has individual facts that need to be considered and evaluated by an attorney experienced in matrimonial law. If you are planning to file for divorce, or have been served with divorce papers, please reach out to Charles J. Marchese at 716/ 845-6446 or [email protected]

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