During Divorce, Why do You Need an Asset Division Attorney in New York?
Dividing your marital assets and debts accumulated during the marriage is one of the most difficult parts of a divorce, even if your divorce is uncontested. A property and asset distribution lawyer in Manhattan can present your case in a comprehensive way to give you the fairest and equitable distribution.
What is Equitable Distribution and Why You need a Lawyer?
New York is an equitable distribution state. This means that any property or debt you and your spouse acquired during your marriage will be divided equitably during your divorce. Equitable distribution does not mean an even or 50-50 split. It means that the Court will consider the individual circumstances of each spouse and will divide your assets and debts in a fair or equitable manner.
Generally, a final award of equitable distribution is not subject to modification. It is therefore extremely important to hire counsel to determine the fairest outcome for you.
What New York Divorce Law Says About Marital Property?
Marital Property or Debt
Only marital property is divided in a divorce. New York Equitable Distribution Law defines marital property and debt as all property or debt acquired by both or either spouse during the course of the marriage. Some examples of marital assets in New York include cash, stocks, securities, bank accounts, retirement accounts, 401(k)s, pensions, income earned during the marriage, real estate, jewelry, business interests etc.
Separate Property or Debt:
Separate property or debt is yours exclusively. The court does not have a right to divide separate property between you and your spouse. Separate property or debt is any property or debt that you owned or incurred before the marriage. Separate property is also property you received as a gift or by inheritance or sums you received to compensate you for a personal injury. (Note: Sums you receive in a personal injury case for your lost income is considered marital property. But sums you receive for pain and suffering is separate property.)
Commingle or Mixing Property:
Sometimes, you may commingle your assets or debts. This is when you mix your separate property with marital property. By mixing certain types of property, you risk turning separate property into marital property, which the court could divide between you and your spouse.
Example: Prior to your marriage, you own a securities account. The Court would consider this your separate property. But, during the marriage, you decide to join your securities account with your spouse’s. Upon making the transfer, your securities account may lose its separate property characteristic and morph into marital property to be distributed equitably during a divorce proceeding.
How is Marital Property or Debt Divided During a Divorce Process in New York?
The court has discretion over how to divide your marital property or debt. In determining how to divide your marital assets and debts, a New York judge will consider the following:
- Income and property of each spouse both at the time of your marriage and at the time you started the divorce case;
- In considering this factor, the judge in essence will take a snapshot of your income and asset holdings as of your wedding date and the day the divorce case began.
- The length of your marriage and your and your spouse’s age and health;
- It should be noted that a marriage is an economic partnership. The court will consider both economic and non-economic contributions you and your spouse made during your marriage.
- If you have children, then the Court will consider the needs of the parent who will have custody of the children;
- A key asset in this consideration is the marital home. This is the home in which you and your spouse lived and raised your children. If your children are still minors, then the Court will give serious consideration to provide the marital home to the custodial parent at least until the children grow up and become emancipated.
- As a result of the divorce, if you or your spouse lose any rights to pensions, health insurance, and\or inheritance;
- Remember, while you are married, you have the right to inherit from your spouse’s estate. When you divorce your spouse, you lose your right to inherit from them.
- Whether the court has awarded you or your spouse alimony;
- The liquid or non-liquid character of your marital property;
- Your and your spouse’s probable future financial circumstances after the divorce
- The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
- Tax consequences to each spouse;
- This factor may be one of the most important for the Court to consider in fashioning its equitable distribution of the marital estate.
- If you or your spouse have wasted any marital assets; and
- Whether you or your spouse have transferred or hid marital property when preparing to start divorce.
Domestic Violence Added as a Factor to Equitable Distribution
On April 3, 2020, an additional factor was added to the property distribution factors in Domestic Relations Law §236 [B]5] [d]. The new factor adds domestic violence for consideration by the New York Courts: whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts. The amendment took effect on May 3, 2020 and applies to matrimonial actions commenced on or after the effective date.
Notably, Social Services Law §159-a does not specifically define an “act or acts of domestic violence. “Instead, subdivision 1 defines victim of domestic violence” as “a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; which act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person’s child.
A spouse who fits within this definition would probably be held to have committed the cruel and inhuman treatment ground for divorce in Domestic Relations Law § 170(1).
Qualified Domestic Relations Orders (QDRO)
The New York State Court of Appeals determined that Retirement System benefits constitute marital property and are subject to equitable distribution provisions of the Domestic Relations Law. Qualified Domestic Relations Orders, or QDROs, is a court order issued after a final judgement of divorce that provides the spouse of a retirement system participant a share of the participant’s benefit when they retire.
Example: In the case of Zebrowski v. Zebrowski, the judge decided to give 50% of marital assets to each party. The judge also ordered that the parties’ retirement assets would be divided via a QDROs. In this case, the judge realized that stock and bond markets are volatile and therefore ordered that the parties’ retirement assets be valued as of the date of its decision not the date of commencement of the divorce case.
It is generally the responsibility of the party seeking approval of the QDRO to submit it to the court with notice of settlement. Because of the complexity of Qualified Domestic Relations Orders, it is best to consult with an asset division attorney in New York.
Contact Manhattan Property Distribution Lawyers at Stepanian Law Firm
Our firm provides every client with personal attention to their case. Since our office aims to find a timely resolution to your matter, you may have the opportunity to move passed a difficult relationship.
Stepanian Law Firm could arrange for a favorable distribution of assets when you and your spouse are separating. Our firm has convenient appointments in the evening and over the weekend, so if you’d like to speak with a Manhattan property distribution lawyer about your divorce legal matters, contact our office today.