NYC Property Division and Equitable Distribution Lawyers
Laws about marriage and divorce vary widely from state to state. State governments are in charge of specific rules about the division of property, spousal support payments, and child support payments. New York is a state that uses marital property. The only property that’s divided between the two parties is the marital property.
As a general rule, marital property includes everything that was acquired by either party when they were married. Even if only one name is on the title, it’s still marital property if it was acquired during the course of the marriage. Also included are the incomes of each spouse during the time they were married, retirement benefits accrued over the course of the marriage, and any appreciation of property that was purchased over the course of the marriage.
You may be surprised by the things that count as marital property. There have even been cases in which frequent flier miles have been divided during the divorce.
In a divorce proceeding, “separate” property refers to property that is owned by only one of the individuals. This property continues to be in the possession of the original owner, rather than being divided with the marital assets. Separate property includes the property either spouse had before being married. This also includes the appreciated value of the property.
The one exception is if, after the marriage, one spouse contributed financially to the value of the other spouse’s separate property. Any property that both spouses have a financial stake in becomes marital property.
Like many states, New York requires equitable distribution of all marital property. Both parties need to receive a fair distribution of the property. This doesn’t always mean that the property is divided fifty-fifty, although many judges will rule that way.
When the court determines how property is divided, they’ll look at a number of different factors. One important factor is the amount that each party contributed to the assets. The judge will also take into account the financial needs of each party following the divorce.
When it comes to equitable division, debts are treated the same way that assets are. A judge will divide responsibility for the debts fairly among the parties based on their contribution and financial situation.
Marital or Separate?
A court needs to go through a number of different steps before it can allocate debts or assets to either party. The first step is to determine which property is separate versus marital. The judge will then decide which party bears responsibility for the debt or ownership of the asset.
There are a number of contributing factors that influence this decision. Rather than dividing everything completely evenly, they look at each case’s unique circumstances to make sure the results are fair. Contributing factors include each party’s income, the health of each party, each party’s financial circumstances, each party’s potential earnings, and the length of time the marriage lasted.
In addition, the court will ask questions about what specific contributions each party made when property was obtained. If you were a homemaker, your contributions will parallel any monetary contributions. For example, if you’ve been taking care of your home and raising your children, the court will likely allow you to keep the home. You can continue to raise your children in the same environment you did prior to the divorce.
Sometimes marital property includes professional practices and businesses. These also fall under the equitable division law. With that said, they tend to be challenging to divide. The legal procedures vary depending on the circumstances. For example, a spouse might own a business prior to the marriage, but it may increase in value over the course of the marriage. The appreciation would count as marital property, but the overall value of the business would not.
Judges usually give ownership of practices or businesses to whichever party is most heavily involved. This only becomes complex if both parties jointly owned the practice or business and put in equal work.
In acrimonious divorces, spouses will sometimes waste assets to keep their ex from getting any of the money. Judges do take this into consideration when the action was taken without the other party’s consent. A common example is one spouse bringing their new paramour on an expensive vacation to drain the amount of money in the bank account.
No matter your specific circumstances, it’s important to get in touch with an experienced attorney who can advocate for you.
When a couple gets divorced, any joint property gets divided according to state law. New York state is an equitable division state, which means that marital property may be divided in a way that meets the needs of both parties. Couples may also make use of prenuptial or other agreements to determine how property is divided.
What Types of Property Are Eligible for Division?
Anything that was acquired during a marriage is the joint property of both parties to the union. Examples of property that may need to be divided include a home, car or money inside of a bank or brokerage account. Small items such as silverware, clothing or electronics may also need to be divided if they were acquired during the marriage.
What If Property Was Acquired Prior to a Marriage?
If an asset was acquired prior to a marriage, it generally belongs to whoever first owned it. However, in some cases, an asset may be considered commingled with marital assets. This may mean that sole property now becomes marital property. For instance, if money from a joint bank account was used to purchase a home in one spouse’s name, the home may become joint property because of how it was paid for.
What Determines If an Asset Is Sole or Marital Property?
There are many factors that may determine ownership of a given asset. In most cases, wherever the source of funds for a given item originated determines who owns it. If the money came from a joint account, it is generally considered joint property. If the money came from an account in one person’s name, that person generally owns it.
What Happens to Assets that Appreciate During a Marriage?
In some cases, an asset may be considered both joint and sole property. For example, let’s say a person owned a business prior to getting married. At the time of a divorce, the company had appreciated in value by 50 percent. For the purposes of a divorce settlement, the difference between the value of the company at the time of the marriage and at the end of the divorce will generally be considered marital property.
This means that if the company was worth $100 million more at the time of divorce compared to when the marriage became official, the couple would divide the $100 million. Of course, it is also possible to wait until a later date to actually sell the company divide the proceeds. In some cases, a spouse would be entitled to an equity stake in the company that could be liquidated in an orderly fashion.
It is important to note that these rules generally apply regardless of what type of asset grew in value during a marriage. It is not uncommon for couples to have investment portfolios or homes that are worth more at the end of a marriage as compared to the beginning of the marriage.
What Role Does a prenup Play in Dividing Property?
A prenuptial agreement is a customized arrangement between individuals that may better meet their needs. Such an agreement must be valid under state law, and it cannot be singed under duress. Ideally, it will be created and signed several months before the wedding actually takes place. Furthermore, it may be a good idea for an attorney to review it before it goes into effect.
Prenuptial agreements may spell out how assets such as a business or home are divided. It may also determine who is entitled to alimony and under what conditions it may be paid. Usually, alimony is based on the length of the marriage or how much the higher earning spouse may be worth at the time of a divorce.
It should be noted that child custody and child support matters generally cannot be resolved in a prenuptial agreement. This is because the state uses a interest of the child policy when determining these issues. However, a parent who has joint custody of a child may be entitled to a greater share of marital property or additional spousal support.
Those who are about to get divorced may want to talk with an attorney as soon as possible. This may make it easier to learn more about state law and how it could impact a person’s ability to retain key assets. It may also make it possible to craft a negotiating position that may result in a favorable outcome for an individual.
Division of property is one of the most consequential parts of the divorce process. If you are considering filing for a divorce in New York, it’s essential to understand how property is divided so that you can manage your expectations. This article discusses the crucial aspects of division of marital property in New York.
Divorcing couples have the option of settling division of marital property out of court. In that case, the family court will order division of the property as per the settlement submitted by the couple. If the parties are unable to reach a consensus out of court, the formula of division of the property will be determined by the court in accordance with the applicable law.
Ney York distribution of property law
The law governing the division of marital property varies from state to state. New York follows an equitable distribution marital property regime as opposed to a community property regime. What is the difference? In equitable distribution, the ultimate goal is to split marital property fairly, not necessarily evenly. Further, equitable distribution does not take marital misconduct and fault into consideration. In community property regime, each party gets half of the marital property.
In equitable distribution states such as New York, the court considers several factors to make the distribution of property fair. It all depends on how your New York property division lawyer argues out the case. It pays off to have a lawyer who will defend your interests aggressively. It’s worth noting that only marital property is distributed. The court will, therefore, have to separate marital property from private property first.
Marital property is property earned or acquired during the marriage, regardless of whose name is on the title deed. Simple as that sounds, it’s not uncommon to find attorneys arguing on whether a certain property should be treated as marital property or separate property. Generally, separate property is the property that belonged to each party before marriage. Some categories of property obtained during the marriage may also be treated as separate property. These categories include gifts, personal injury compensation, and inheritance. If separate property acquired before marriage appreciates during the marriage, the value gained is treated as marital property.
Factors considered when dividing marital property
The following are some of the factors considered when dividing marital property equitably between divorcing parties.
- Length of the marriage
- Age and health of each party
- The effect of the divorce on health insurance benefits
- The liquidity of the marital property
- Special needs of the custodial parent. For example, the custodial parent is more likely to be awarded the marital residence
- The effect of the divorce on the pension and inheritance rights of each party
- The probable financial future of each party
- Any wasteful disposal of property by the parties
- Any past transfer of marital property without fair consideration
- The tax burden falling on each party after the division of the marital property
These factors are not fixed; depending on how the attorneys present the case, the court may consider any reason that it deems just. From the factors listed above, there are two points worth noting: wasteful disposal of property and transfer of property without fair consideration. Some unscrupulous partners will start wasting or transferring marital property in anticipation of the divorce. If your partner does that, and you prove it during the divorce proceedings, the court will compensate you accordingly when dividing marital property.
Some assets are not divisible between two parties. For example, how can a business interest be divided? When distributing such assets, the court may order one party to make a specified payment to the other in order to balance the distribution.
How can NYC property division lawyers help you get a fair deal?
Division of property is a complex process with a lot of quarreling points, right from debating what property should be considered marital property to the actual division of the property. If you hire an accomplished property division attorney, you increase the chances of getting a fair deal considerably. As you may have noted, the outcome you get could be down to the number of issues your attorney draws the attention of the court to.
The role of NYC property division attorneys is not limited to courtroom battles; there are many more issues that these divorce attorneys could help you with. For example, between an out-of-court settlement and a court determination, which route gives you a better deal? A good lawyer will advise you on the cost-benefit implications of every step you take in the divorce process. In the past, people have spent more money on legal expenses than the value of the property they acquire in the end. With the help of a skilled lawyer, you will avoid such terrible mistakes.
New York is an equitable distribution state. In New York City, if you are involved in divorce, the court will divide the marital assets in a fair manner. This does not mean that the division will be an exact 50/50 split between the two spouses, but the court will look at all financial and material assets including all the facts and elements of the marriage in order to ensure it is as fair for both parties as possible.
The court will look at factors such as the following before determining the disposition of marital property and assets:
- Length of the marriage
- Children from the marriage
- Health and age of both spouses
- Earning ability of each spouse
- Contributions to the marriage
- Needs of each party
- Needs of any children involved
- The nature of all property
Only the marital property and assets will be divided. Each spouse may have separate property that is not included in the decision and distribution. Whatever was earned during the marriage can be considered with few exceptions. A lawyer can advise what is and isn’t considered marital property in your individual case, however, usually whatever the spouse acquired before the marriage, is not considered part of the marital property.
Retirement income can be considered marital property if the retirement funds are derived from income made during the marriage. Any property purchased during the marriage just as insurance policies and debt acquired are marital property. Separate property that won’t be considered for division includes some of the following:
- Inheritance or Gifts (not given by spouse)
- Property acquired before the marriage
- Any item listed as separate within a prenuptial agreement or other written contract
- Compensation for personal injuries
There can be comingling of separate property in the marriage which can then be considered marital property such as if one spouse places money from an inheritance they received before the marriage into a joint bank account.
By law, both spouses are required to disclose their financial property. Sworn statements of net worth are required along with the most recent federal income tax return for full disclosure. If either spouse does not comply with the law on this matter, the court can impose fines and sanctions on the offending party.
A New York City court will usually follow these steps during the division of marital property: decide whether each asset is marital property or separate property, assign a value to all of the marital property, distribute the assets. The court may issue a one-time settlement or a distribution over a period of years.
In the last few decades, people have waited longer to marry, which means each partner brings not only personal wealth to the marriage but debt. What happens to debt in the event of a divorce? Will you be responsible for the frivolous spending of your spouse who incurs major debt? Each divorce case is different, with different elements that are unique to that marriage, and there may be extenuating circumstances affecting the outcome, however, the following is recognized by law in regards to who is responsible for debt:
Individual Account: The party who opened the account with their name, income and credit history whether married or single is responsible for the debt.
Joint Account: This account holds that both parties are responsible for the debt incurred because both incomes and credit histories were used to open the account.
Account Users: Sometimes an “authorized user” can be placed on an account. This is done strictly for convenience. For example, one spouse has opened an individual account but wants the other spouse to be able to use the credit card associated with the account. Although credit bureaus will report the names of both parties who have access to the credit, only the spouse who opened the individual account is responsible for the debt.
Pension plans, 401K’s and other retirement plans are all considered marital property. Whatever portion earned in these plans while you were married will be considered and divided. Even some instances of separate property can be considered marital assets even if they are not comingled. For example, if the value of your individual property increased due to your spouse.
The fair and equitable distribution of marital property and assets can be complicated, stressful, and might leave one or both parties resentful or dissatisfied. Having a lawyer who can work with you to navigate the complex nature of equitable distribution of marital property can lower the very stressful nature of divorce.
Going into a marriage with a lot of property is something that many of people do every year. However, you would be crazy to not protect yourself financially before getting married. A lot of people end up losing their fortune because they do not spend the time to prepare accordingly. Although divorce rates are dropping in the United States, there are still a lot of divorces every year. It is vital to take steps today to prepare yourself before getting married.
The good news is that this is now a common practice in many areas. If you want to protect your finances from a divorce, there is a process that you can go through before you get married. Our team has a ton of experience in this area, and we can help you in a variety of ways. Here are some of the most important steps to take in order to protect yourself financially in the years ahead.
Getting marriage counseling before the marriage is an important part of having a strong marriage. There are a lot of people who are excited about all of the changes that are starting to take place in this area. Marriage counseling was a long and drawn out process at one time. Today, you can take online classes with your future spouse before getting married.
Part of the discussion in this counseling should be your personal finances and assets. There are a lot of people who do not discuss their personal finances before getting married. This is a huge issue that a lot of people have to deal with. Now is the time to start laying out a plan for your future lives together with your money.
Part of that plan should be about getting a prenuptial agreement. This is where the finances are already divided out in case of a divorce. Although no one wants to think about it, there are times when this happens in your life. If you have a lot of money that you need to protect, this is the and most effective way to do it.
A major part of building wealth is investing. There are a lot of people who have been investing diligently over the years. As part of this investing, you have to have a plan for how to divide up your investments in the event of a divorce. Few people will sign a prenuptial agreement if the other party is going to get nothing.
The problem in this area comes in when a person owns a business or has a lot of land. These things are tough to divide out, and no one wants to lose family land or a business that they have been working hard for.
With all of these factors to consider, it is easy to see why a divorce can get so complicated with an agreement in hand before the process. If you have a high net worth, it is vital to plan for this event before the marriage actually takes place. Doing so will save you a lot of time and money later on in your life.
Many people today have a life insurance policy on them. It is important to protect your family in the event of your death financially. However, should you get a divorce, you probably do not want your ex-wife or ex-husband on your life insurance agreement.
As part of any prenuptial agreement, you need to have a plan to either dissolve the life insurance agreement or to transfer it to someone else. Not doing so could result in a disaster for the rest of your family if you do die. Over time, this is one of the most important things that you have to figure out in your prenuptial agreement.
Property Division Overview
All the choices that you need to make when executing a property division needs to be based on all the available information. Depending on which pieces of information you have (or lack), you might end up either giving up more than you should or not getting all of what you are supposed to receive in the property division. Guessing any of the details is not an acceptable method. Appraisals are a necessary evil. Indeed, they can be costly in some cases, but appraisals are a worthwhile investment. In some scenarios, a forensic accountant may have to come in and assist. Your NYC property division lawyer should be able to refer you to a forensic accountant and other that can collectively give you an advantage in the process.
Your lawyer and their team should examine every piece of property accumulated during the course of the marriage. Your attorney and his or her team of professionals will handle all of the finer details. Then they can boil all the data they collect down into a clear and concise proposal. In the event that the other side accepts the proposal, the work in the division of property is done and the parties can go through with their divorce. If any disputes arise, you should be able to rely on your property division lawyer to aggressively battle for your rights and protect what is rightfully yours.
Communal Property vs Separate Property
In New York City, all the property that a couple accumulates during the marriage is considered as marital or communal property. These assets are collectively spoken of as the marital estate. For this reason, it should be split up accordingly between the spouses. Details including the value increase of property or real estate, as well as retirement accounts, must be included in the divorce property division process. Inheritances and gifts are exceptions to this rule.
Additionally, when you wedded your spouse, you may have already had some property, cash savings or investments. Your spouse may have come into the marriage with their own property, cash and/or investments as well. These assets are known as separate property. You and your spouse can exclude specific pieces of property from the marital estate by entering into a marital contract, such as a prenuptial or postnuptial agreement. In the absence of a written and signed document, the presumption is that property purchased during the marriage is indeed marital property. Again, this excludes except inheritances. It also excludes personal injury/worker’s compensation awards for pain and suffering and third-party gifts.
Overall, these are never fun topics to discuss before a marriage. However, if you do not get a prenuptial agreement before you get married, you could leave yourself open to a lot of financial recourse from your spouse. Over time, you must figure out a plan in this area before it is too late.
Our team has a lot of experience in this area with helping people financially. We know all of the challenges that you will face in this process, and we have a plan to help protect you in the future as well. Now is the time to start working on a protection plan for the future in your financial life.
NYC Property Division/Equitable Distribution Lawyers
New York is a marital property state. In a divorce, only the marital property of the parties is divided. The general rule is that marital property includes but isn’t limited to any real, personal or intangible property acquired by either of the parties during the marriage, notwithstanding how title may be held. It can also be considered to be the income of each spouse during the marriage, retirement benefits of each party received during the course of the marriage, or appreciation of any property that the parties purchased during the marriage. Even frequent flyer miles have been held to be marital property.
Non-marital or separate property of the parties isn’t divided in a divorce. Unless the other spouse has contributed to the increase in the value of separate property, each party keeps their separate property. Separate property would generally be the property that either spouse obtained prior to the marriage. That includes its appreciated value unless part of the appreciation of the separate property was attributable to the efforts or contributions of the other party.
Along with being a marital property state, New York is also an equitable distribution state. That means in a divorce, the property of the parties will be distributed in a manner that’s equitable or fair. The court examines what each of the parties has contributed to the marriage along with what each of the parties will be needing after the divorce. The court’s division of property doesn’t necessarily have to be equitable to be fair. Debts are treated the same as real, personal or intangible property.
Before a court decides on assets or debts, it must first determine whether property is marital or separate. It then makes a decision on ownership of the property or responsibility for the debt. In making that decision, the court is guided by various factors, the objective of which is a fair result. Those factors include the length of the marriage, the income of the parties, their health, their potential earnings and financial circumstances in the future. The court will also inquire into the parties’ contributions in obtaining property. Contributions as a homemaker parallel money contributions. Like most other states, when it comes to the home and children are involved, chances are that you’ll be able to stay there, at least until the children are grown.
Businesses and professional practices are to be equitably divided, but they can be very difficult to divide. Should a spouse own a business before the marriage, and it appreciated in value during the marriage, any appreciation would be marital property if the other spouse contributed to the appreciation. Contributions would include working in the business or even staying home as a homemaker while the other spouse actively participated in the business. More often than not, a judge will award the business or practice to the party that’s involved in it. The court then awards the other party property in return.
Dissipation of assets
If a spouse is alleged to have wasted assets of the parties, a judge will consider that issue unless it was done with the consent of the other party. This might be seen in the context of one of the spouses going on an expensive vacation with their paramour, or an investment that one of the parties never knew about bringing very bad consequences. It might also involve transfer of money or other assets to another person prior to separation or the parties or the sale of assets below market value. Dissipation issues most often arise after the parties’ marriage has broken down.
Spousal maintenance is commonly known as alimony. It’s paid by one spouse to another after a divorce. There are times when it’s paid during the pendency of divorce proceedings. Temporary or permanent maintenance is independent of any child support obligation. It might generally be paid until death, or the cohabitation of the other spouse with another, or their remarriage. A maintenance award in New York is ordinarily based on the same criteria as division of property. Earning capacity and marital standard of living might also be considered. Although fault generally isn’t ordinarily relevant in New York divorce courts, the nature and extent of any instances of domestic violence in the course of the marriage might be considered on a maintenance issue if they interfered with the victim seeking or improving employment.
Should one of the parties submit evidence regarding the tax events following a possible property distribution, the court is required to consider those possible consequences. If property is ordered to be sold with the parties sharing any net proceeds equally, the court will usually order that the tax consequences also be shared equally.
Any divorce case that comes into our offices is taken very seriously. Every client is assigned two family law attorneys along with an evidence gathering lawyer. We provide first class and aggressive representation while also taking all measures to minimize the effects of the stress of divorce on you and your family. Clients are the key to the success of our firm. We built it on referrals and existing clients. Free consultations are available by phone, video conference or in person. We’re pleased to advise you of your rights and guide you through the family law process. Our objectives are satisfactory results and satisfied clients.
What happens to retirement funds and 401(k) plans in a divorce?
A divorce is a complicated matter, particularly because it requires dividing up a lifetime partnership in a relatively quick hearing. For this reason, it can become easy to lose sight of some important matters, but one thing you should not forget to address is the fate of your retirement accounts. In addition to the possibility of having to divide your accounts up between you and your spouse, there’s the issue of taxes to consider. For this reason, you should understand what will likely happen to your retirement accounts and how you can protect yourself from additional losses.
Dividing Your IRA
Whether by choice or by court order, you may have to divide your retirement accounts between you and your spouse a term of the divorce. Where an IRA is concerned, this is called a transfer incident to a divorce and must be filed as such to avoid paying penalties and taxes. The divorce decree will order this as either a transfer order or a rollover, but, in either case, it must be handled correctly by the IRA custodian.
This process ensures that your ex-spouse will be granted sole ownership of the funds transferred into his or her account. If your former spouse withdraws that money for any reason, this ensures that he or she will be responsible for paying the taxes on that money.
Failing to file the transfer incident correctly may leave you liable for paying those taxes, as well as subjecting you to pay penalties for early withdrawal. When the transfer incident isn’t properly filed, the IRS will assume you both still have access to the IRA funds, which means both of you will be subjected to those fines and penalties. The way to avoid this situation is to submit the information to the IRS together, which should include the percentage of the asset division, the exact dollar amount transferred to your ex-spouse, and the account numbers for the sending and receiving accounts.
Dividing Funds Under a QDRO
A QDRO, or a qualified domestic relations order, concerns the splitting of retirement funds in plans such as a 403(b) or 401(k). While these accounts are protected against most types of seizures, a spouse can file the QDRO to claim a portion of the funds stored in the account. Much like a transfer incident, the division of these funds under a QDRO exempt those involved from having to pay taxes on the transferred funds.
In order to avoid taxes and penalties, the QDRO must be approved by the courts and the account custodian must be notified of the transaction. In order to avoid paying taxes, the receiving spouse must immediately roll all of the funds over into an IRA account or another qualifying plan. If the money is rolled into a Roth IRA, the funds will be taxed as a conversion, but the individual will not be penalized by the IRS. It’s important to ensure all paperwork is filed correctly and the transaction is approved in advance, because a transaction that’s not deemed a legitimate QDRO by the IRS will be taxed and subjected to penalties.
Don’t Forget to Change Beneficiaries
You will likely want to change your beneficiary, since you probably won’t want to name your former spouse as the primary beneficiary. If you have children, you may want to make them the primary beneficiary. One way to do this and to ensure they will receive the funds is to name a revocable living trust as the beneficiary, while naming your children as the beneficiaries of the trust. This helps circumvent the probate process and ensures your children receive the maximum amount from the funds.
Once you’ve completed the division of funds, it’s important to consider how you’ll manage the remaining funds in your account. Even though you may need to rebuild your savings, you should consider who will receive the money after your death. This is a good time to review your estate plans and make any necessary changes.
As this brief overview suggests, it may not be enough to ensure your attorney is experienced in family law matters. You gain the possible advantage in working with a lawyer who has expertise in divorce, finance, tax law, and estate planning. By combining these separate disciplines, your attorney can ensure you get the results you want in your divorce and in planning for the future for your dependents. Above all, working with an experienced professional ensures you’re protected against paying more than your fair share in taxes.