What is Fair in Love and War
In New York, marriage is seen as more than just a societal standard of a public declaration of love and commitment, but also an economic investment and partnership between the two spouses. A divorce in New York initiates once one spouse brings a lawsuit against the other. While these matters can be resolved in different ways, in many divorces, the division of assets and finances play a significant role in divorce proceedings. With the majority of married couples not having a pre-nuptial agreement prior to getting married, which spells out how assets will be divided if a divorce occurs, an understanding of the process is important.
The divorce process includes the division of assets, called Equitable Distribution, which as a central principle is the ideas of equality and fairness when deciding who is entitled to what property. The goal of Equitable Distribution is to divide Marital Property fairly between the divorcing spouses, with an emphasis on equal monetary value to each divorced spouse, unless a prenuptial agreement says otherwise. There are exceptions in these matters when there are items purchased prior to the marriage or personal gifts or judgments from others outside of the relationship that are awarded during the marriage that are considered separate property and not subject to the principles of equitable distribution.
Under the state’s laws governing Equitable Distribution, property is divided into marital property and separate property. Marital property is typically anything that either spouse purchased or received during the marriage and prior to the execution of a separation or prenuptial agreement, even items that are titled to only one spouse. Retirement or pensions plans can be considered marital property for the purposes of equitable distribution. However, there are exceptions to these general propositions and reputable presumptions.
The Court has significant discretion is determining what is “fair” at times of dividing assets. Factors the Court considers when making these decisions are each spouse’s income, the length of the marriage, each spouse’s age and health, any maintenance awards, if the custodial parent needs to live in or own the marital home, the loss of health benefits from divorce, if there are claims of domestic violence, if there is a companion animal, and any other factor the court seems proper to consider. N.Y. DOM. REL. §236(5)(d)(1)-(16). The Court is to analyze each case based on its own unique facts and consider the lives effected by its decision.
Contact our attorneys at Flink Maswick Law PLLC that handle divorces to speak with us further on how this stage of divorce works.
The foregoing is not to be considered as legal advice and each case contains unique factors which should be considered by your attorney of choice.
