Commack Property Division Lawyer
One major issue to be decided in just about every divorce is the division of marital property. Even if the couple were only married for a few years, they have likely acquired a significant amount of property (and debt) together that must be fairly divided if the couple splits up. If they also owned a home, bought some investment property, started a business, or accumulated large amounts of wealth during the marriage, figuring out how to equitably distribute that property can be a daunting task. The Law Office of Joshua Adam Kittenplan can help. Our experienced family law attorney can help you work with your spouse to create a marital property settlement agreement that fairly divides the property and lets you keep that which is most important or necessary to you. If negotiating a settlement isn’t in the cards, our skilled litigator can represent you in court and bring forward the proper legal arguments to make sure your rights and interests are protected. Call our experienced Commack property division lawyer today for practical advice and effective counsel on the issues specific to your New York divorce case.
Determining Marital Versus Separate Property
The first step in the property division is identifying what property is marital and what is non-marital, or separate property. In a New York divorce, marital property is equitably distributed between the parties, but each party’s separate property stays separate. New York law defines marital and separate property in the following ways:
- Marital property is all property acquired by either or both spouses during the marriage and before executing a separation agreement or filing for divorce, regardless of how title to the property is held.
- Separate property is all property acquired before the marriage; property acquired during the marriage by inheritance or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for separate property; the increase in value of separate property, except to the extent the appreciation is due in part to the contributions or efforts of the other spouse; and property described as separate property in a prenuptial or postnuptial agreement.
The Law Office of Joshua Adam Kittenplan can help in the complicated process of determining whether property is marital or separate. Marital property includes “all income and assets of whatsoever kind and nature and wherever situated,” as well as most assets transferred in any manner during the preceding three years of the marriage. Our family law attorney can help make sure every piece of property is accounted for and accurately valued, including working with experts as necessary to conduct business valuations and property appraisals. If marital and separate assets have been commingled or if your spouse is hiding or undervaluing property, we’ll engage in asset tracing and other methods to make sure the marital estate is completely and accurately represented.
How New York Courts Divide Marital Property
Unless the rights to marital and separate property have been previously established in a prenuptial or postnuptial agreement or a marital property settlement agreement, the court will determine the rights of each party in their separate or marital property and provide for the disposition of marital property in the final judgment of divorce. Under New York law, marital property is to be equitably distributed considering the circumstances of the case and the parties. This means that property is not necessarily divided equally but according to what the judge deems is fair. The judge is required to consider the following factors in making this determination:
- The income and property of each party at the time of marriage and the time when the divorce is filed
- The duration of the marriage and the age and health of both parties
- The need for a custodial parent to occupy or own the marital residence and to use or own its household effects
- The loss of inheritance and pension rights upon dissolution of the marriage
- The loss of health insurance benefits upon dissolution of the marriage
- Any award of maintenance (alimony)
- Any equitable claim to marital property by the party not having title, including their efforts and contributions as a homemaker or to support the other party’s career
- The liquid or non-liquid character of all marital property
- The probable future financial circumstances of each party
- The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party
- The tax consequences to each party
- The wasteful dissipation of assets by either spouse
- Any transfer or encumbrance made in anticipation of divorce to hide the asset from division
- Whether either party has committed an act or acts of domestic violence against the other party and the nature, extent, duration, and impact of such act or acts
- In awarding the possession of a companion animal or pet, the court shall consider the best interest of such animal
- Any other factor which the court shall expressly find to be just and proper
The court can also order payment to one spouse to make up for an asset that can’t or shouldn’t be equitably divided, such as an interest in a business. The court can also order the use and occupancy of the marital home and household effects to one party regardless of how the property is owned.
Contact the Law Office of Joshua Adam Kittenplan Today
The Law Office of Joshua Adam Kittenplan will take the time to understand your needs and desires regarding the distribution of marital property. We’ll prepare an argument based on the above factors that makes a strong case for a fair distribution that meets your needs. Call our experienced Commack property division lawyer today.