Marital assets, and debt, in New York generally are things that are acquired during the marriage that does not fall under the exception of separate property. Separate property, in general are things that a spouse entered the marriage with that was kept separate throughout the marriage. Property acquired by gifts or inheritance that are kept separate also usually fall under the category of separate property. Marital assets are broadly defined while separate property is narrowly defined. It is the burden of a party claiming something to be separate property to prove that claim. In a divorce, separate property needs to be identified, while the marital assets and debt need to be distributed.
Equitable could mean equal or something different when distributing property in a dissolution of a marriage in New York. Equitable means what is fair. Sometimes there are pre or post-nuptial agreements or a separation agreement that already dictate how property should be divided. Usually these agreements are honored but there are circumstances when a court could void them or set them aside. If there are no agreements in place, the parties and their attorneys can agree upon what is equitable. If there is no agreement on what is fair, then equitable distribution becomes the job of the judge.
But isn’t everything just divided in half in a divorce? Usually that is the case for marital assets and debt, but it is not a foregone conclusion. Sometimes the split might be that eighty percent of the marital assets go to one spouse with twenty percent to the other. Sometimes the split is equal after an application of credits to one side before the division. Some assets are given entirely to one spouse, while others are shared in some way at times. Continue reading →