Experienced Buffalo Divorce Lawyers
The separation of marital property is a significant part of the divorce process; New York refers to this process as equitable distribution. This law provides that all assets and debt acquired during a marriage are considered marital property and are therefore subject to division among the spouses. The underlying principle of equitable distribution is that a marriage is an economic partnership with both spouses contributing. The extent and nature of this contribution, as well as other circumstances surrounding the marriage, will determine how marital assets are distributed during a divorce.
The court examines a number of factors in determining how to distribute property. They look at the type of property and the amount. They also consider the interests of the parties regarding the assets and property. There is no precise formula that tells a court how to divide marital property among divorcing spouses. Instead, a court will focus on doing what it believes is most equitable, or fair. Therefore, the more effective you are in explaining to the court why your proposal for dividing marital assets is the fairest option is critical. While you could try to do this alone, you’d be much better served having a skilled and experienced Buffalo divorce attorney help you in court.
At Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., in Buffalo, New York, our attorneys aggressively protect the rights of clients’ in marital property division proceedings. If you are going through a separation or divorce, contact us to arrange a consultation.
What Is Equitable Distribution?
During a divorce, the court won’t necessarily divide all the property among the spouses so that each gets an equal amount. Note that this is called equitable distribution, not equal distribution. While the court will sometimes divide property equally, it will consider what each spouse contributed during the marriage as well as what each spouse will need in the future.
Also, the court is not required by law to order equitable distribution. If the couple can divide their assets themselves, they are free to do so. But the reality is that many couples will have at least a few disagreements to how certain assets are to be divided during a divorce.
Finally, not all the property in the marriage is subject to equitable distribution. Only marital property will be, with other types of property, called separate property, kept by each respective spouse. One of first things the court will do is figure out which property is marital and which is separate.
Separate Versus Marital Property
Marital property is basically all property acquired by the couple during the marriage. Marital property can include assets that are titled to just one spouse. Marital property includes all the income earned during the marriage, as well as the property obtained with that income. Even the appreciation of property during the marriage is subject to equitable distribution.
Unlike marital property, separate property will be kept separate during a divorce. However, if the other spouse has helped increase the value of the separate property, it may be subject to equitable distribution. Examples of separate property include:
- Any inheritance or gifts received during the marriage, unless the gift came from a spouse.
- Property owned by each spouse before they got married.
- Any compensation due to personal injuries suffered by either spouse.
- Any property subject to a prenuptial agreement .
- Any appreciation in value of separate property, but only if the other spouse did not contribute to its appreciation.
The Equitable Distribution Process
The first step in valuing marital property is identifying all property that belongs to the married couple. This means each spouse will need to disclose all their financial assets, sources of income and debts.
Next, the court will distribute the marital property by looking at 14 factors.
- Duration of the marriage.
- Income and assets of each spouse during the marriage and divorce.
- Financial need of the spouse.
- Loss of any health insurance benefits.
- Any spousal support awarded to one of the spouses.
- A spouse’s contribution to marital property.
- The form of the marital asset, i.e. whether it can easily be converted into cash.
- The future financial outlook for each spouse.
- How easy or difficult it will be to value or divide a marital asset, such as a business.
- The tax consequences each party will face during the divorce.
- Whether a spouse transferred or disposed of property at less than market value in anticipation of the divorce.
- If a spouse wasted any marital property while the divorce was occurring.
- Loss of pension or inheritance benefits because of the divorce.
- Any other fact that the court deems relevant in determining equitable distribution.
Marital fault or misconduct is usually not considered in creating an equitable distribution. But in situations where the marital fault results in reducing the value of marital assets, the court may take that into account.
Since some marital property may not be easily split up, the court is allowed to order cash payments from one spouse to another to balance the equitable distribution of property. For example, if a court were to allow each spouse a 50% interest in the family home worth $200,000 that neither spouse wants to sell, it may order one spouse to pay the other $100,000 in cash to “buy out” the other spouse’s interest in the home.
In short, any marital property (property acquired during the marriage) is subject to division during a divorce. Pensions, deferred compensation accounts and IRAs are all included in the definition of marital property even if they were earned by one of the parties through employment and even if that property is not yet “vested.”
However, some property is considered separate and not subject to distribution by the court, including:
- An inheritance
- Proceeds from a personal injury lawsuit
- A gift from a third party and property owned prior to the marriage
Contact Our Divorce Lawyers in Buffalo NY
Property division issues can prove to be extremely complicated and are an integral part of all divorce proceedings. We can make sure that your property rights are fully protected during your divorce.
Compared to other issues that come up during divorce, equitable distribution can be a little more straightforward, since it deals with numbers. But in a contested divorce, one or both sides may fight very hard over every piece of property. Therefore, a family law attorney will be necessary to handle these conflicts. And even in an uncontested divorce, it’s extremely helpful to have an attorney to help account for and value the property to be distributed.
Please call or contact us online to arrange an initial consultation with one of our divorce lawyers. We welcome the opportunity to represent you. We offer flexible appointment schedules.
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