A Guide to Property Division in Divorce Cases
Q: What could happen to my property in a divorce?
New York is an equitable distribution state, which means that a judge will examine each spouse’s income and the property they own. They’ll account for the duration of the marriage and each party’s age and health. Depending on the details of the case, this could result in an even split or one party getting more than the other.
Marital property is defined as “all that which is not separate property”, so it kind of begs the question, “what is separate property?” Generally speaking, separate property is:
–Property owned before the marriage (but an increase in value of that property might be marital property);
–Money received as compensation for pain and suffering in a personal injury case (provided that it was not co-mingled with other marital property or in any other way treated so that it loses its character as separate property);
–Property that was inherited by one spouse (again, if it was not co-mingled with other marital property or in any other way treated so that it loses its character as separate property);
–Property held apart as separate because of an agreement between the parties (e.g., a properly drafted and enforceable pre-nuptual agreement).
Q: How do they decide who gets the house?
If it is marital property it is presumed to be a 50/50 split, even if title is in one party’s name alone but the property was acquired during the marriage.
If the couple has kids, the court may award the home to the custodial parent so that they can make use of its features and provide a comfortable life for the children. The court will also examine the ability to make mortgage payments and each party’s claim to the property to make its final decision.
Q: What if my property is completely separate from my spouse?
The court will determine when the property was acquired and the circumstances surrounding its ownership. If it was yours before marriage or was given as an inheritance and it was not co-mingled with marital property or funds, then it’s yours to keep. If it’s found that the other party contributed to the property’s value, it will be counted among the other assets and divided fairly (“equitaby”).
Q: What if I own a business or some type of professional practice?
If one party was running the business on their own, they’ll receive full ownership. Cases where both parties were working together to ensure success will cause the court to evaluate personal interests. They’ll typically grant full ownership to the one who was putting in the most work while ensuring that the other spouse gets compensation, or, alternatively, order a sale of the assets.