Division of Marital Assets

In a divorce, the property (land, house, buildings, and items of personal property) owned (and debts owed) by the couple is divided between the parties.  You may agree to divide the property any way you like, as long as a basic fairness is maintained, and you both agree. If you cannot agree on any item of this division, the dissolution of marriage transforms into a contested divorce and the courts will determine how the marital assets are to be distributed. Under Section 236B of the Domestic Relations Law of New York, commonly referred to as Equitable Distribution Law, Marital property will be equitably distributed (equitable does not mean equal)upon the dissolution of the marriage. Separate property will not be distributed but will remain as the property of the one who holds title.

Marital property: is all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held. Marital Property is probably the issue most often litigated, since the parties often do not agree on either what property constitutes marital property or the value of marital property. Property acquired during the marriage is presumed marital, unless proven to be separate. Examples of marital property include:

  • Real estate
  • Bank accounts
  • IRAs and other deferred compensation plans
  • Stocks and bonds
  • Household furniture
  • Automobiles
  • Licenses or skill that enhances future earning capacity of either party
  • Appreciation of separate property to the extent that the appreciation is due to the contributions, either directly or indirectly, of the non-titled spouse.

Separate Property: Although separate property of a spouse cannot be equitably distributed by a court, the amount of the separate property of a spouse is a factor that the court take into consideration when equitably distributing martial property and a factor that the court take into consideration in determining maintenance.

  • Property acquired before marriage
  • Property acquired by inheritance
  • Property acquired by gift from a party other than the spouse: Wedding gifts made to both spouses are marital property. If, during the marriage, either party makes a gift to the other, that gift is considered marital property subject to equitable distribution.
  • Personal injury compensation: money damage awards as a result of a lawsuit for personal injuries suffered  is separate property. However, no-fault insurance benefits received as a result of an automobile accident which are reimbursement for lost wages and medical expenses are marital property, but benefits received for pain and suffering are separate property.
  • Property acquired in exchange for separate property
  • Increase in value of separate property: except to the extent that such appreciation is due in part efforts or the other spouse.
  • Property described as separate property by written agreement of the parties: The parties are always free to decide between themselves the classification of their property (marital or separate) even though the classification contravene the provisions of EDL. The agreement, however, is subject to the provisions of DRL Section 236(3) in that it must be fair and reasonable when made and not unconscionable at the time of entry of final judgment. The agreement must be subscribed by the parties and acknowledged in a form to entitle a deed to be recorded. The acknowledgment of the agreement is an absolute requirement for the validity of the agreement,
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