One of the most contentious parts of a divorce is the division of property. It ranks just after child custody battles. Divorcing couples can struggle and fight as they argue over who gets what. When they can’t agree, the decision is left to the court.
This is how the process works.
Is NY a 50/50 divorce state?
No. New York is not a 50/50 or community property state where all property is divided equally between spouses.
New York is an equitable distribution state for debt and property. The state’s divorce law puts property distribution in the hands of the court to determine how marital debt and property are to be divided according to its equitable distribution laws.
Simply put, this means that each spouse keeps their own property that they themselves acquired before the marriage.
As for marital property, the court will award each spouse a percentage of its total value.
How is property divided in a divorce in NY?
There are several factors that the judge will use to determine how marital property is divided. They will look at the financial and non-financial contributions that each spouse made to the marriage. This includes:
- Each spouse’s income and other assets while they were married, up to the time they divorced or were legally separated
- The length of the marriage
- The health and age of both spouses
- If the couple has any minor children they will determine the need for the custodial spouse to remain in the marital residence
- Any loss of pension or inheritance rights that either spouse may experience because of the divorce
- If either spouse may lose health insurance benefits because of the divorce
- The award of maintenance or spousal support that the court will make
- If one spouse contributed to the marital property in a way that they don’t directly benefit from, like one spouse putting the other through college
- Determining what marital property is liquid and non-liquid
- Each party’s probable future financial circumstances
- Assets whose value are difficult or impossible to determine, such as a spouse’s interest in a business
- If the couple has a business and one spouse is awarded the business.
- Each party’s tax consequences
- If either spouse has used up, destroyed, or wasted any of the marital property during the course of the divorce proceedings
- If either spouse disposed of or transferred any marital property or sold it for less than market value while having full knowledge that the divorce would be occurring
What is a wife entitled to in a divorce?
Many people believe that in a divorce the wife gets everything. There are movies about it, people joke about it, and at least in New York, it’s just not true.
New York’s divorce laws give the courts the power to divide the property. If a wife walks into a marriage with a certain property, like a house, land, or investments, she walks out of the divorce with those things. The same goes for the husband.
There is no preference given to one gender over another. The laws call for fairness in property division and there are several things that the judge looks at when making that division. Giving preference to the spouse who holds the title of a wife, is not one of them.
Who gets the house in a divorce?
Again, there are several variables that the judge must consider when deciding which spouse gets the marital home.
First, the court needs to determine if the house is indeed considered a marital asset. If it is not, then it will go to the spouse who owns it under the equitable division laws. If it is determined to be a marital asset, then it is subject to equitable division. At that point, the court can take several courses in handling it.
Sell the home. In some cases, the judge may determine that the best course of action is to sell the marital home. Once its sold, the spouses will divide the proceeds.
One spouse buys the other out. Sometimes one spouse wants to remain in the home or retain possession of it. When that happens, the court will arrange a buyout so that the spouse who wants to keep the home will buy out the other spouse’s ownership interests.
When children are involved. If there are children from the marriage, then the focus is on their best interests and the judge will make that a priority. In those cases, the parents may want to keep from uprooting their children and allow them to stay in their home. This will minimize the impact of the divorce because it will reduce the changes that are taking place. They can stay in their schools, keep their own rooms, remain in their familiar neighborhood, and stay close to their friends. Divorce creates enough chaos and changes in a child’s life without them having to move out of their home. The couple may decide or plan to sell the house later, perhaps after the children are out of school.
Is a spouse entitled to the other spouse’s 401k in a New York divorce?
Retirement funds, pensions, and 401ks are all considered marital assets under New York law, so they are subject to equitable distribution in New York. This does not mean that the other spouse will get it all – or even half – but they will likely get a percentage.
First, the judge must determine what portion of the asset is subject to equitable division. If a spouse worked at a company before they got married and their employment extended through the entire marriage and after the divorce, the portion of the asset that was earned during the marriage is considered a marital asset.
All the contributions the spouse made before they got married and after the divorce was filed are considered separate property.
Public pensions are subject to equitable distribution as well. Often the judge will use the Majauskas formula to determine how the pension will be divided in a divorce. The formula multiplies the number of years of service by 50%, then divided by the total service credit at the time of retirement. The court may also use a variation of the Majauskas formula or assign a flat dollar amount.
Additionally, a person who has a public pension may be required by the court to name their ex as a beneficiary of pre-retirement death benefits. They may also choose a payment option that continues to provide benefits after the death of the participant.
How is marital debt handled in a divorce?
New York is not a community property state, so marital debt is not divided equally. Instead, it is subject to equitable distribution. This means that the court will divide the debt between the spouses as part of the property division in a divorce. The judge will work to ensure that the division is equitable and fair.
However, equitable does not always mean equal. The court will determine what is fair as it divides the debt and will take into consideration many factors when evaluating each spouse’s overall contributions during the marriage.
It is worth noting that the court will only resort to equitable division when the divorcing spouses are not able to reach an agreement on their own on how the debt should be distributed. Some divorcing couples will work together to create a mutual debt-sharing agreement, thus avoiding putting it in the hands of the court.
Divorce isn’t easy but if you are dealing with divorce and property division with an uncooperative ex-spouse, it can be a nightmare. Let the Litvak Law Firm do the heavy lifting for you and help you get the best possible outcome for your case. Our talented, experienced team will go to bat for you and make sure that you get everything that you deserve. Call today at 718-989-2908 for your free consultation and find out what we can do for you.