One of the most stressful subject for residents of Westchester County as they approach a possible divorce is how will the couple’s property be divided. The topic is probably most concerning for individuals who came to the marriage with significant wealth or acquired significant wealth during the marriage. An understanding of the basics of how property is divided in a New York divorce may allay many of these concerns.
The basic rule: Fair and equitable property distribution
Divorcing couples are free to negotiate their own division of their marital assets, but many couples are unable to reach an agreement on this issue. In such cases, the court will conduct a trial and divide marital property in a manner that is fair and equitable. “Fair and equitable” does not, however, mean equally. The court has discretion to distribute marital and separate assets unequally if doing so is necessary to ensure that the custodial spouse can provide for the well-being of any minor children.
One of the court’s first tasks is to identify the couple’s assets as either “separate assets” or “marital assets.” Separate property includes property owned or obtained prior to the marriage. Separate property also includes property obtained by inheritance or gift, increase in the value of separate property, and any compensation for personal injuries. The general rule for dividing separate property is to allow the spouse that owns the property to keep it.
However, courts occasionally award separate property to the non-owning spouse to achieve a fair and equitable division. Marital property is property obtained by one or both spouses during the course of the marriage. If marital and separate property were commingled during the course of the marriage, the court may treat all such assets as marital property, especially if the spouse who is awarded physical custody of any minor children has proved that she will need more resources to pay for the children’s food, shelter, education and health care.
Making a prediction about how a judge is likely to divide marital and separate assets is very uncertain. An experienced divorce attorney can often offer significant help in valuing both separate and marital assets and in developing arguments that will support a beneficial award to the client.