Whether you own a house, a car or a well-funded retirement account, your property will probably be a big source of contention in your upcoming New York divorce.
If you and your ex don’t have a marital agreement to guide the distribution of your property, you likely each have feelings about what you should receive from the marital assets and what marital debts you should have the responsibility to pay.
Whether you intend to negotiate a settlement directly with your spouse or to litigate, you will need to understand how the New York family courts handle your personal property in a divorce.
New York is an equitable distribution state
You can potentially arrange for your own settlement with specific terms you can agree upon. Some couples pave the way for an uncontested filing by making a prenuptial agreement. Others work collaboratively before they file or even go to mediation. Couples setting their own terms can retain complete control over who gets which assets.
However, if a judge has to look at your property and decide how to split it, it will be the equitable distribution rule that guides the process. Equitable distribution basically requires that a judge find a fair way to split the property. This doesn’t necessarily mean a 50-50 split as is common in some community property proceedings.
Instead, the judge has to look at factors like the length of the marriage, the custody of minor children and the earning potential of each spouse to decide what is appropriate given the circumstances.
Debts and assets are subject to division
The equitable distribution process takes into consideration the property you share and the debts you have yet to fully repay.
A judge could split the property or even order the sale of certain assets. They might give one spouse more debt because they have more income or split the debts between both spouses. Understanding equitable distribution will help you suggest terms that you think are fair during litigation or can empower you to push for a better settlement during a collaborative divorce.