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If a couple cannot come to terms on how they will divide their marital property, the judge presiding over their case will have to decide for them according to New York’s laws of equitable distribution.

How does equitable distribution work?

Under the equitable distribution model, a couple’s marital assets are divided in a fashion that the court deems fair considering the facts of the marriage.  Equitable does not necessarily mean “equal,” it means equitable or fair.

If dividing a couple’s marital estate becomes the judge’s responsibility (the couple could not reach an agreement), the judge will consider the following circumstances before rendering a decision that is as fair as possible:

  • The length of the marriage
  • The age and health of each spouse
  • The income and assets of each spouse
  • A spouse’s contributions as a homemaker
  • A spouse’s contributions to the other’s education
  • If a spouse will be caring for the children and if they need the family home
  • Whether spousal maintenance will be awarded
  • Each spouse’s earning capacity
  • Whether either spouse wastefully spent the marital assets
  • Any other factor that is relevant to the matter

Separate vs. Marital Property

Generally, only marital property is divided in a divorce.  So, the first order of business is to determine which property is marital and therefore subject to division.

Marital property usually includes all assets and property acquired during the marriage, regardless of how it is titled, whose name is on the account, or who earned the money.  Even businesses, IRAs, 401(k)s, and professional practices are considered marital property.

In contrast, separate property is NOT subjects to division.  Separate property includes: 1) property acquired before the marriage, 2) gifts and inheritances, 3) personal injury awards, and 4) property characterized as “separate” due to a valid prenuptial or postnuptial agreement.

Check back in as I add more information that concerns property division in a matrimonial action.

 

 

 


Copyright 2014 by
Richard H. Weiskopf
Of Counsel to  the DeLorenzo Law Firm
670 Franklin Street, Schenectady NY 12305
518-374-8450

 


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