Dividing a couple’s property during a divorce can lead to confusion and endless arguments; whether the property at issue is your great-grandmother’s antique clock, the kitchen table, or your primary residence, New York law establishes who gets what during a divorce and the division might not be as obvious as couples think.

Marital property versus separate property

The first step in property division is determining which category the item belongs in: marital property or separate property.

In general, marital property is subject to division by the court during a divorce in New York. Marital property is property or income that the couple acquired during the marriage, except for third-party gifts, inheritances, and pain and suffering awards for personal injury or worker’s compensation claims.

Separate property, on the other hand, is generally not subject to division. Separate property includes all of the money, investments, and property you owned prior to getting married.

However, the separation of marital property and separate property doesn’t always follow these clear-cut rules. For example, the couple may have a prenuptial or postnuptial agreement that stipulates a different division of property. And in some instances, personal property can become marital property if one spouse significantly contributed to increasing the value.

In cases where property can’t be divided (such as real property) the court may order one spouse to make a monetary payment to compensate the other for their share.

Equitable distribution: fair not equal

Many clients think that during a divorce that property will be split equally between the spouses; however, New York law takes a different approach. Known as “equitable distribution,” the court is required to divide marital property in a way that is fair to each spouse but not an even 50/50 split.

So how does the court decide what division of marital property is equitable?

Courts in New York will examine the divorcing couple’s marital estate and consider any factor that is relevant to the division, including but not limited to:

• The income and property of each spouse at the time of the marriage
• The income and property of each spouse at the time of the divorce
• The length of the marriage
• Which spouse has primary custody of minor children and the need to stay in the marital residence
• Any award of support or maintenance the court will be making

Protect your property interests with the Law Offices of Stacy Sabatini, Esq.

Don’t let your divorce rob you of the property and income to which you are entitled. At the Law Offices of Stacy Sabatini, Esq. we understand that you work hard for your assets and fight to safeguard your property interests during a New York divorce. For more information on how we can protect your interests, visit us online at www.sskfamilylaw.com or email our office online. Our office is located in New City, New York and provides legal services to families in Rockland, Orange and Westchester counties.