The law in New York for the division of marital assets in a divorce is equitable distribution. Equitable distribution does not necessarily mean equal, although that is usually the starting point, it means what is fair. The job of your New York City, Long Island or Nassau County Divorce Lawyer is to show what is fair. New York Domestic Relations Law Section 236 is where the statutory provisions of this law can be found. The parties to a case may have made an agreement during or before the marriage about custody of children, child support, will provisions, maintenance (formerly known as alimony) and determinations of separate property and how marital property is to be divided or distributed which is the subject of this blog entry. These agreements are commonly called prenuptial, post-nuptial, separations agreements or stipulations of settlement.
If the agreement is in writing, subscribed, acknowledged, or proven with the same formalities necessary to record a deed, the agreement should be honored in a matrimonial proceeding. Future blog entries will have more details about marital agreements. Different processes may be used for parties to settle their issues such as mediation, collaborative law, settlement discussions, and negotiations in litigation. How is the law applied, however, when there is no settlement, prenuptial agreement, separation agreement or post nuptial agreement?
First, the determination of what is separate property and what is marital property must be made. Marital property is broadly defined in New York as property acquired from the date the parties were married to the date of a legal separation (not just physical separation), or the start date of a matrimonial case. From that broad definition of marital property separate property must be carved out. It is the burden of the person that is claiming something as separate to properly make that claim. Separate property includes whatever was already agreed upon in a properly made written agreement. Also, that which someone received before the marriage or by gift from someone besides their spouse or from inheritance is classified as separate property. Personal injury compensation, too, is listed as separate property. Increases in value of separate property is also separate, except if the increase in value is due in part to the contributions made by the spouse (this is commonly called sweat equity). The rest of the property acquired during the marriage is subject to equitable distribution. Continue reading →