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How is Property Divided in a Divorce in New York?

How is Property Divided in a Divorce in New York?

New York uses equitable distribution when dividing assets and property. During a divorce, only marital property and assets will be divided equitably. Separate property will not be touched. It is up to the court’s discretion to determine what equitably means and additional factors such as the duration of the marriage and each spouse’s contributions to the marriage may be considered.

Marital property and assets include all property and items purchased while married, regardless of who purchased them. Separate property and assets include all property and items purchased before marriage, which are not subject to the laws of equitable distribution.

What Does Separate Property Consist Of?

Each spouse gets to keep their separate property during a divorce. Separate property consists of the following:

  • Property either spouse acquired before marriage
  • Inheritances or gifts
  • Property deemed separate property that was established in a prenuptial or postnuptial agreement
  • Compensation for personal injuries to either spouse
  • Property acquired from the proceeds or appreciation in value of separate property unless that appreciation was due to the efforts and/or contributions of the other spouse

Factors That Impact Marital Asset and Property Division

There are a wide variety of factors the court will consider before distributing marital property. These include but are not limited to the following:

  • Duration of the marriage
  • Age and health of each spouse
  • Income of each spouse
  • Each spouse’s separate property
  • If the parent with custody of the children will need to reside in the family home

You can agree on how to divide property with your former spouse if you would like without having to involve the court. However, if you cannot agree with your spouse, it would be best to leave this process up to the court’s judgement.

How Is a House Divided in a Divorce?

Before dividing the family home, you will need to determine if it is considered marital or separate property. What this means is that if you and your spouse purchased your family home together after getting married, your house is considered marital property and will be divided in a manner the court deems fair. On the other hand, if one spouse purchased the house before you were married and did not put their spouse’s name on the title of the house, this house would be considered separate property.

Your family home may also be considered commingled (or mixed) property, which is what happens when you each spouse uses their own funds (separate assets) to pay for marital property. Dividing your family home gets more difficult if it becomes commingled property. It is advisable to consult with an experienced divorce attorney to help you with this process.

When marital and separate property are commingled, a judge may combine your separate property together with your marital property and divide it accordingly. The judge will take your individual contributions into consideration and divide the marital property after. A prenuptial or postnuptial agreement can help you protect your property from becoming part of the marital estate.

Do You Need an Attorney for Divorce? Call Us Today.

It is not easy to determine how to divide your assets and property during a divorce. There are various factors to consider, not to mention needing to be familiar with equitable distribution laws. It would be beneficial to you and your family to consult with an experienced divorce attorney.

With over 90 years of combined experienced, our lawyers at Friedman & Friedman, PLLC, Attorneys at Law, have the knowledge and skill you require to help you seek a favorable divorce outcome.

Contact our office online or call us at (516) 688-0088 to set up an initial consultation.

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