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Divorce is a trying time for any couple going through that process. The matter is complicated further by the intricacies involved in deciding how to split their property. Marriages unite a couple both in love and in possessions. Getting to decide what each is entitled to in a divorce settlement, can prove problematic. It is best to hire a property division attorney to help navigate through this murky process.
Most states adopt a community-based property division formula that distributes the marital property equally to each spouse. Each party to the divorce gets half of all assets obtained together during their marriage. In New York, however, the approach is different. Being an Equitable Distribution State, the matrimonial property is thus divided based on several factors with the aim of an even split.
The Equitable Distribution Principle
Ideally, couples ought to agree on how best to split their property. The emotional situation at that time may prove difficult for such decisions to be arrived at amicably, and thus the need to involve the courts of law through Long Island property division lawyers. During the divorce, the courts accept written separation agreements on the division formula of the matrimonial property. Without such an agreement, the courts divide the property for the couple.
If you and your spouse opt to have a separation agreement, here are a few steps to get you started in drafting one.
1. Make a List of your Possessions
This move requires honesty. As a couple, you should be willing to detail all your possessions. The list should include property owned by individuals including the total assets accumulated during your marriage life. This gives a clear picture of the total assets in question.
2. Valuation of Property
You could consider hiring the services of an expert to give an actual estimate of your property. This will be helpful at the division stage.
3. Deciding on the Ownership of your Property
Mutual consent at this stage is essential. Keeping a record of the divided property with a value attached is important in giving a picture of what each spouse accumulates.
4. Finalize with a Judge’s Approval
The final step after agreeing on the division involves all parties signing the document and present it to a judge for adoption.
Understanding Separate and Matrimonial Property
All the properties the couple accumulates may be divided into two categories, the separate and the matrimonial property. Separate property refers to all assets acquired before the nuptials. The law also provides for any assets acquired individually as a gift, or inheritance except those received from the other spouse as separate property. Assets categorized as separate in a prenuptial agreement are also classified as separate property. The matrimonial property, on the other hand, includes all property earned or purchased during the marriage. Under the equitable distribution, the courts only allow marital possessions to be divided equitably between the two parties regardless of the name under the title.
A legal exemption to the equitable distribution principle provides for certain cases where separate wealth may be considered as part of the assets to be split. Such a case is that which involves any increase in the value of different assets owing to the efforts of a spouse. In such a situation, the courts put into account issues that revolve around improvements made to the property by a spouse, or an exchange of the property in question for another of a higher value by another spouse.
Factors Considered In the Division of Property
Some considerations influence the court’s decision in the division of property for an equitable division to be achieved. The court takes into account all matrimonial assets or liabilities and assigns them to each spouse based on a specific set of considerations. They include,
1. Spousal Attributes
The courts put into account the age of each spouse age, their income, and health.
2. Matrimonial Assets
Financial possessions, future financial situations, and potential earnings form part of the division assessment. The court further factors in the contribution of each spouse to the marriage, whether it was in the capacity of a homemaker or as a financial contributor. In the court’s eyes, both are treated as the same.
One of the eventualities of divorce proceedings is the custody battle. Whoever wins the custody over their kids, he/she stands to get a larger share of the matrimonial assets, top among them, the family home.
4. Wastage of Matrimonial Assets
Wastage encompasses issues like transferring or selling property in anticipation of a divorce or the use of the matrimonial property to finance an affair. The spouse found to have committed such an action is penalized during the division process.
5. Spousal Obligations
Insurance benefits to be lost as a result of the divorce, tax consequences of each party, as well as other requirements, are factored in the division.
The ultimate decision of the court leads to a fair distribution of the property having factored in all the aspects of the spouse’s lives. Therefore, it is important to consider hiring a property division attorney during the process.