Equitable Distribution Under NY Divorce Law Explained

First, and to me foremost, you need to know that equitable does NOT mean equal.  I’ve encountered hundreds of people who believe these two terms are synonymous . . .well . . they’re not.

One of the most common misconceptions regarding “equitable distribution” is that both sides  must divide ALL marital property equally. However, New York divorce law has an equitable distribution standard. If you and your once-beloved-spouse can’t  come to a property settlement agreement, a State appointed New York judge is going to decide what is “equitable”  for you.  In my experience, if you, your lawyer and your about-to-be-ex can hammer out a division of property agreement, you are saving a lot of time, frustration and money.  There’s always a risk that one or both of you won’t be too thrilled with the judge’s decision.

In most cases, but believe me there are many exceptions, separate property owned by one spouse or the other prior to getting hitched, as it were, isn’t included in the marital assets that are subject to property division. Separate property can  include property owned before the official “I do’s” . . . your vintage Mustang perhaps, or your favorite aunt’s silver tea service … as well as inheritances, and certain types of personal injury compensation claims.  Marital property is typically (but isn’t always limited to) property you and your spouse acquired during the marriage or property that, for some reason, obscure or otherwise, doesn’t fall within the definition of separate property.

Only marital property (take a gander at the paragraph above) is included in equitable distribution. However, and there always seems to be an however, some circumstances could result in separate property actually becoming marital property. Confused yet?  So was I the first thirteen times I read these confounding (but good nonetheless) laws.  For instance, if a spouse deposits inheritance funds into a joint checking account for both spouses to use, the judge could rule that the property is now a marital asset. Spouses with separate property can certainly benefit from consulting with a New York divorce attorney . . . you want to get this over with right?  .The quicker the better?  I say, get a lawyer from the outset and you’ll thank me later.

Debts are also classified “items” for equitable distribution. So . . . you are possibly responsible for some debts that your spouse incurred during your marriage. No, I’m not kidding, take a deep breath and accept it, it’s a fact. Remember, equitable does not mean 50-50. A judge is going to scrutinize all sorts of factors in your case in order to determine what they deem equitable. Please!  Trust me!  Try to work this out with your spouse via a lawyer who knows New York Divorce law inside-out.  Financial splits are just as emotionally charged as child custody which I’ll discuss elsewhere.  No matter what your financial situation is, you’re going to have to be flexible . . . don’t let your emotions rule, get concrete advice from a qualified and experienced attorney.

Basic Facts:  a judge takes 13 different factors into account (sorry I couldn’t resist the pun) when deciding how to divide your property.

• Income of the spouses
• Length of the marriage
• Need of a custodial parent to live in the marital home with minor children
• Loss of inheritance and pension rights due to divorce
• Loss of health insurance because of divorce
• Award of support or maintenance
• Whether a spouse contributed to property that they did not have title to or own
• Non-liquid or liquid character of all marital property
• Financial futures of each spouse
• The difficulty or impossibility of determining the value of certain assets
• Tax consequences for each spouse
• Whether a spouse wasted or used up any assets during the separation
• Whether a spouse disposed of or transferred martial property at an amount less than the fair market value in anticipation of a divorce

There is also a fourteenth factor that a judge may use, which is “any other factor which the court shall expressly find to be just and proper.” This clause gives a judge wide discretion to consider other factors that the judge rules to be relevant to an equitable division of property and debts between the parties.

Need I say more?  Do everything in your power to avoid having a judge do what you and your almost-ex should be able to do, however difficult it might be.  Of course, if you do everything and nothing else works, a New York appointed Divorce judge can be trusted to look at your case carefully and rule with what they feel is best for all parties concerned.

In conclusion . . . get a lawyer!  There are probably at least a few people you know who’ve been through a divorce . . . ask them for a reference and why they are referring them to you.  I know it’s irritatingly redundant but I want to once again stress that you need a New York Divorce specialist, someone with plenty of experience.

After all . . .  Your future hangs in the balance.

Contributed By: The Matrimonial Law Team At Aronov Law NY – Contact Us Now For A Free Consultation. We can handle most cases across New York State virtually – without you having to come into the office.

RA-NY Queens Divorce Lawyer & Family Attorney