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In New York, there are three basic steps in dividing assets which is done via what New York calls equitable distribution. In short, equitable distribution, means that your assets do not have to be divided exactly 50-50, but, they do have to be divided equitably.
Deciding if the asset/property is “marital property” or “separate property”. A court will divide your assets into two categories: marital property or separate property. Separate property can be property that you inherited, gifts and property owned prior to the marriage. However, it is possible for you to convert your separate property into marital property. For example, if you inherited $10,000 and placed that cash into a joint banking account, it most likely will be considered marital property. If you had placed that same $10,000 into your own separate banking account, it almost certainly would be considered separate property.
Note that it is presumed that any property acquired during the marriage is to be classified as marital property. You have to show the Court why a particular piece of property should be classified as separate property.
Property that is classified as marital property will then be evaluated or appraised for its value. In order to determine a value for each asset, a certain date must be established to determine the date the property will be valued on. For example, if your house is classified as marital property then which date do we choose to value it on: the date you bought the house, today’s date or somewhere in between?
Martial property will be divided into two categories: passive assets and active assets. Examples of passive assets are real estate and mutual funds. Examples of an active asset is a family business.
Typically, passive assets are valued as close to the date of trial as possible or if the parties settle the divorce, as close to the date of settlement as possible; and, generally, active assets are valued on the date that the Summons was filed. Therefore, a house’s value will be determine as close to the date of trial or settlement as possible or as late as possible.
Third Step: Distributing the Marital Property
After the marital property is evaluated it is distributed to the spouses. In most divorce, marital property is equally divided between the spouses. Equally divided does not mean that each piece of property has to be “split in two” or equally divided. For example, if you have the following assets, all of which have been classified as marital property with the value as indicated:
Home net equity
(market value minus the mortgage on house)
If one spouse takes the house (worth $150,000), the other spouse could take all the cars, jewelry and stocks (worth $150,000 in total) and that would be considered an equitable distribution of the marital property.
Although most of the time, marital property will be divided equally, since New York is an equitable distribution state, the Court could consider the following factors in distributing the property equitably (which means that it will probably not be 50-50):
- Income of the parties at the time of the marriage and at the time the Summons in the divorce was filed
- Duration of the marriage
- Need of the custodial parent to occupy the marital residence
- An award of maintenance (alimony)
- The liquid or non-liquid character of the marital property
- Probable future financial circumstances of each party
- Tax consequences to each party
Finally, debts accumulated during the marriage must also be divided. If the debt was incurred during the marriage, it is a marital debt. Like a marital asset, marital debts will undergo a three-step process to determine who has to pay it and how much has to be paid.
I was unusually fortunate to have David Badanes tackle a very technical, complex and stubborn post-divorce issue. He was down-to-earth, practical and diplomatic but nonetheless persistent. He never promised the impossible: he stayed focused on the achievable. An expert in another state observed she’d never seen a situation quite like mine but she came to admire Badanes’s grasp of the case and its issues. I sincerely believe there are very few attorneys who could have managed in a case like this to bring about a successful and reasonable resolution.
Dan van B., Huntington, NY