Due to precautions related to COVID-19, we have expanded our options for remote consultations. Please contact our office to discuss whether a full phone consultation or video conference is appropriate for your situation.

Decades Of Litigation Experience

What’s Mine is Yours?

by | Feb 26, 2021 | Family Law |

By Regina Competiello

Whether a decades old marriage is ending, or it has only been a few years, but you entered the marriage with separate assets, a divorce causes many people extreme concern over what they are going to be left with at the end of the day. In New York, assets are divided by equitable distribution, meaning a divorcing party splits their assets equally, or at least fairly, if you are dividing up significant assets.

Some assets are easier to divide – such as cash assets because there is a monetary value associated with the same. Other non-tangible assets, such as the value of a business, will need to be appraised and a value placed on the same. Real estate also generally needs to be appraised to determine the true value of the asset.

But what about the fact that the house we lived in throughout the marriage was owned by me prior to the marriage?

The house is your separate property as long as it has remained solely in your name. What factors may change this fact? Transferring title to both your spouse and you now makes that assets a marital asset. If you did not transfer the asset, but your spouse can prove either direct financial contributions to the maintenance or renovations on the home which may have increased the home’s value or indirect contributions, then they may be entitled to a portion of the equity. Additionally, during a marriage, income earned is considered marital income. If you take that marital income and then pay the mortgage with it, you are using marital property for a separate property asset. The Court’s solution? Award your spouse one half of the money used to pay down the principal balance of the mortgage over the life of the loan.

One final factor to consider is, that New York is a no-fault state, which means no one must prove that someone did anything wrong to obtain a divorce. However, if a spouse wastes marital assets or purposefully dissipates the value of an asset, the Court can award the other spouse additional property to compensate.