In New York State, property is not necessarily divided equally among spouses when they divorce. Instead, the parties involved are allowed to agree on the issue of property division. If they fail to come to an agreement, they will have to appear before a judge. In court, the property will be divided equitably with consideration to what each member earned during the union.
During the entire process, the parties involved will have the capacity to settle the matter on their own. If the spouses come to a suitable conclusion, they will have to submit a written agreement on how they would wish to split the property. This agreement is handed to the judge involved.
The simplicity involved in property distribution is usually dependent on the personalities of the spouses. Divorces are characterized by emotional turmoil, and many people are unable to think objectively in such situations. If the matter requires the intervention of the court, it is usually a lot easier to hire a divorce lawyer.
Otherwise, you might end up with an unfair share of the property, especially if your spouse seems to have bad intentions. Lawyers are better informed when it comes to divorce laws and are, therefore, best placed to represent you in court.
What is Considered When Dividing Property in a Divorce?
In the past, property division in New York was based on property titles. If one spouse failed to get their name on a property, then they were not entitled to it after the split. But that is not the case today. Now, the court tries to divide the property fairly among the parties. That said, separate property is still not divided. The only exception is if the other party contributed to an increase in the value of the property.
To settle at a fair agreement, the court has to consider certain factors.
First, it has to establish what each member earned and owned at the time of marriage and divorce. The age of the spouses is also taken into account, along with the entire duration of the union. It also considers which parent has custody of the children. If any of the spouses has insurance or inheritance rights, the court takes into account their loss as a result of the marriage. In addition, the judge will consider:
The likely financial future of the involved parties
Whether the assets are liquid or non-liquid
Whether the court has granted alimony
The judge is also free to take all relevant matters into consideration when authorizing a fair division of property.
Marital and Separate Property
The court only divides marital property during a divorce. This includes:
All the property you bought during the union, except any individual contributions made with separate property
Bank accounts, money, and securities of each member. This also includes retirement accounts. These are only divided if they were acquired during the marriage.
Education certifications, licenses and business permits that were acquired during marriage. Any enhanced earning capability is considered marital property by the New York courts. In cases where such property has to be divided, the court will usually award the other party tangible property to make up the difference. This is because dividing certification and licenses is a difficult job.
Generally, separate property includes everything that was earned before the marriage and anything that was earned individually even after the union. It also includes gifts and inheritance, unless they were given by the spouse. Any compensation received for personal injuries is also considered separate property, regardless of when it was earned. This has to be unrelated to loss of wages or earning capacity in the period of marriage. In case an increase in the value of separate property can be credited to the other spouse, this will be considered by the court.
The judge will also consider any written agreements between the spouses, describing their agreements on separate property.
Divorces are hectic processes, and property division is one of the hardest parts. A lot of paperwork is involved and if you are not keen on all processes, you can lose your hard-earned wealth. Granted, some separations go smoothly, but most are chaotic.
Hiring a property division lawyer can make your work easier, and will ensure you get the best deal possible. This is because they have studied property division laws and are capable of bringing up options you were even unaware of.
It is also a fact that divorces are times of extreme confusion, and everyone affected usually tries to win the case instead of getting their fair share. Ironically, trying to win more property typically leads to more court visits, which cost more money in the long-run. Property division lawyers have the capacity to assess the matter objectively and understand how much property you can get out of the marriage.
There are actually some pretty compelling reasons why couples decide to give it a try:
For the Children
Many couples feel guilty enough about their union not surviving, and to compound their guilt by disrupting their children’s lives is a step they’re not prepared to take. They stay together in the same house for appearance sake and continuity. If the kids are young enough, they might not even notice a change.
For Financial Reasons
For many couples, financial stress is at the root of their marital problems. The thinking is, if they’re having a hard time managing one household, how could they possibly manage two?
Out of Stubbornness
One of the worst reasons to continue living together is stubbornness. If it start’s with, “You leave!” No. You leave!,” it’s likely to not end well. Think War of the Roses.
Waiting for Division of Property Agreement
Don’t get too comfortable living in limbo. If you’ve decided to make it legal, get it done so both of you can move on.
Tips to Help Make it Work:
If There are Children, Clearly Define Parenting Responsibilities
Ideally, you’ll be able to keep up appearances for the kids, but let’s face it – this is not an ideal situation. You may not be a couple any longer, but you’ll always be parents. In this new setting, there need to be ground rules about who picks up the kids, makes dinner, and helps with homework. The responsibilities will be split, not shared. There’s a difference.
Define and Agree to the Changes in Your Relationship
If young children aren’t an issue, make sure it’s understood that each of you can come and go as you please. Even if you agree that you can see other people, be discreet. If possible, wait until you have your own place.
Fix Parameters of Both Separate and Communal Space
If you home or apartment is big enough for each of you to have your own room, great. If not, maybe one of you needs to move to the living room couch or the basement. In a “poor man’s separation,” they separate the space with a blanket on a clothesline.
Agree to Who Has What Household Responsibilities/Bills
If you share a bathroom, make it clear how the cleaning is to be split. If you both cook, agree to clean up after yourself. Split the mortgage? Utilities? Credit cards? Until you get a division of property agreement, each of you will have to trust the other’s integrity.
What’s the goal?
Living together while separated is not an end unto itself. Are you waiting to see if the counseling will help? Is one of you saving up for their own place? Are you waiting until the end of the school year to take the next step? What’s the plan?
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