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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.