New York’s equitable distribution law specifies that you are entitled to a division of all “marital property” assets that were acquired during the marriage. With few exceptions, marital property generally includes both spouses’ income, purchases made with that income, and retirement benefits.
What Is Marital Property in New York?
Marital property includes:
- Real estate and property you and your spouse purchased while married.
- Personal property like vehicles, boats, furniture, antiques, jewelry, and artwork bought during the marriage.
- Business assets that arise after the marriage.
- Cash, bank account funds, retirement accounts, pensions, and securities acquired during the marriage.
- Gifts purchased for each other after the marriage.
What Property Is Not Divided in a New York Divorce?
Separate property, which you are not entitled to, includes:
- Real estate and property owned before the marriage.
- Personal property obtained before the marriage and its value increase.
- Property you received by inheritance or gift during the marriage.
- Business assets obtained before marriage.
- Compensation received for personal injuries while married, except the loss of wages or earning capacity.
Do I Receive 50% of All Marital Property?
As an equitable distribution state, New York courts strive to produce a fair balance of property division. Every divorce is different, with a myriad of factors weighed by a local judge. The entitlement to equitable distribution of marital property or alimony maintenance is not automatically a given, particularly if one spouse is independently in a much better financial position than the other. “Equitable distribution” does not mean all property is automatically split 50/50 between spouses.
Factors in the distribution include:
- The duration of the couple’s marriage
- The conduct of each spouse during the marriage (related to financial decision-making)
- The age and overall health of each spouse
- The occupation, vocational skills, training, and earning capacity of each spouse
- The ability of each spouse to acquire capital assets and future income
- The income and separate property of each spouse
- The liquidity of the marital property involved
- The non-financial contributions of each spouse
- The liabilities and debts of each spouse
- Any wasteful dissipation of assets prior to divorce
- Whether or not spousal support was awarded
- The wishes of both spouses regarding particular assets
If both spouses mutually agree on how to divide assets, equitable distribution laws may never come into play.
Am I Entitled to More If My Spouse Misbehaved?
You may feel you should walk away with the lion’s share of assets if your spouse cheated, abused drugs and alcohol, engaged in criminal activities, or committed acts of violence against you. However, the courts only consider the spouse’s behavior when it impacts the couple’s finances. For instance, if a spouse was hiding or fraudulently transferring marital assets, they may be awarded a smaller percentage of the estate.
Who Determines Marital Property Value?
Marital property is typically assessed at “fair market value” at the time the divorce is filed. However, New York allows the date to fluctuate when there is a long period between the filing and the court hearing. The court or mediator may rely on the testimony of expert witnesses like real estate appraisers, antique dealers, and forensic accountants. These experts can be recommended by the court, attorneys, mediators, or the parties to the case, but must appear neutral and unbiased. Comparative Market Analysis is also routinely conducted in determining real estate value, with recent neighborhood sales and home improvements or renovations considered.
Am I Entitled to A Portion of My Spouse’s Business In New York?
If one or both spouses own part of a business, that ownership can be considered property that must be valued. A forensic accountant will look at assets and debts, including the tangible property (like equipment and inventory), as well as intangible property (like customer relationships). Business profits after deducting for expenses will be assessed. Increased or decreased value since the marriage will also be taken into account. The company’s bookkeeping records may be examined, or the courts could take a market approach to valuing the enterprise by exploring what a buyer would pay to acquire the business based on its presumed earning capacity.
When looking at a divorce and business assets, courts try to see not only the immediate fair and equitable distribution but the long term interests of a business and even take into consideration any children who would have a stake in the survival of it.
What To Do in a New York Divorce Dispute
Uncontested cases may proceed with a mediator, but disputed assets can be challenging to manage on your own. If you live in Rockland County, New York, or Bergen County, New Jersey, consulting with a New York divorce attorney at KGG Law will ensure that you receive all that you are entitled to in your divorce.
You are entitled to counsel, though a court may appoint a lawyer when there are contested custody or visitation issues, and the party lacks the means. If one spouse has financial means, the court may direct the payment of legal fees. For more than 40 years, Kantrowitz, Goldhamer, and Graifman have helped couples settle divorce issues fairly. Contact us to schedule a confidential evaluation.