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One way of looking at a marriage is that it is a marital contract between two people who have decided to share their lives and their assets. As such, when the contract is broken, and each person decides to go their separate ways, disputes over the division of these assets can occur.
Of all the assets that couples amass during their marriage, real estate is one of the most valuable. As such, the question of who gets the house in a divorce in New York is often a contentious issue.
Considering the high divorce rate in the US, it is important to have set rules that determine how the division of marital assets is handled. In cases where the divorce is not amicable, the battle between one spouse and the other can be quite heated.
If the other spouse is not willing to discuss fair property distribution, having a good New York divorce attorney becomes very important. Divorce & Family Legal, located in Albany, is ready to help with equal property division after a marital breakdown. A free consultation can be scheduled by calling +1 518-992-5924 right now. Our team can also discuss questions such as when is property considered abandoned after a divorce in NY?
What Is Considered Marital Property?
When two people have been living together for a long time, deciding which assets belong to each spouse individually and which are jointly owned can be difficult. This is because as long as things are going well in a marriage, not many people feel the need to keep track of who buys this or that.
In New York, marital property includes all the items that one spouse or both acquired during the marriage. This does not include specific assets that are defined as a spouse's separate property.
The key point in defining marital property acquired while the marriage lasted is that it does not matter whose name is on the title. This means that even if a house is listed as belonging to one spouse, the other spouse is still entitled to it.
Here, it is important to understand that the term "while the marriage lasted" means the period from the date of the marriage until a separation agreement was signed or divorce proceedings were finalized. It means property obtained while the couple was living apart may still be defined as marital property if they were not legally separated.
What Counts As Separate Property?
During the divorce process, it is important to distinguish between separate and marital property so that equitable distribution laws are adhered to.
In a New York divorce agreement, separate property remains with one spouse and is not shared equally. These types of assets are defined as follows:
Personal property that was acquired by either spouse prior to the marriage
Increase in value of personal property that was not acquired during the union
Other property obtained in exchange for personal property
Property that both spouses defined as separate property in a written agreement
Compensation for personal injuries
Gifts or inheritances from a third party
Equitable Distribution of Marital Property in New York: Key Considerations
As an equitable distribution state, New York laws are designed to help couples easily identify what part of their assets they will walk away with in the aftermath of a divorce.
If the two spouses cannot reach an agreement, the divorce case will have to go before a judge. Here, the court determines how to conduct equitable distribution of marital assets by considering the following factors:
How long the marriage lasted
Who the primary caregiver or custodial parent will be to any children
The age of each spouse
What the contributions of each spouse were in the marriage
The state of each spouse’s health
What the contributions of each spouse were in the marriage
The need for spousal support and health insurance benefits
What the established standard of living was during the marriage
The total value of separate property
What the total value is of marital assets
The earning capacity of each spouse
It is important to not only consider financial contributions when discussing equitable distribution laws. If one spouse had to stay at home to look after the marital home and the children, this is also taken into account.
Can Separate Property Be Considered Marital Property?
In a process called transmutation, separate assets can be converted into marital property. This can be intentional, such as when a spouse converts their real property into a marital house by adding their partner to the title.
Another process called commingling can also occur, such as when one spouse's bank accounts are used as the primary accounts for the couple during the marriage. While the name on the account might not have been changed, it is considered a joint account since both parties deposited and withdrew money from it regularly.
Dividing Marital Debt
Depending on the financial circumstances of either party, marital debts can sometimes complicate the division of property. Usually, a judge will look at the same factors that affect equitable distribution when deciding what portion of the debt to assign to each spouse.
Three Possible Outcomes in a Divorce Case
There are three possible outcomes to divorce proceedings when it comes to equitable distribution of marital property, which is why having a good family lawyer is essential. In New York, the judge can decide to settle the case in any of the following ways:
Refinancing the home to one spouse after the other spouse signs off and relinquishes any claim to the property
Selling the house to pay off the mortgage and split the remainder between the two parties
Agreeing to an equal and joint retention of the home after the divorce
Who Gets the House in a New York Divorce?
During the course of a marriage, couples may amass a lot of property that they will not want to lose. They may also invest in retirement accounts and other assets prior to the divorce that they feel should be considered separate property.
Such cases are difficult to resolve without the help of an experienced divorce lawyer. In New York, married couples can approach Divorce & Family Legal to assist with an equal split that ensures they get what they are entitled to from the divorce.