How is Property Divided in a NY Divorce?


Divorce is never easy. Not only is it an emotionally difficult time, but you may also face financial concerns about how your property and assets will be affected. Typically, depending upon the length of the marriage, a great deal of property may have been acquired that will have to be distributed. One of the biggest questions you may have is “who will get what?” Marital property is subject to what is known as "equitable distribution" in a New York divorce. The New York Domestic Relations Law defines what constitutes marital and separate property.


Marital Property

Generally, marital property is defined as any property that was acquired by either or both spouses during the course of the marriage -- unless the parties had otherwise entered into a written agreement. In distributing marital property, New York State follows the doctrine of “equitable distribution.” It is important to understand that “equitable” does not mean “equal.” Rather, it means that the court will consider a number of factors surrounding the circumstances of the case and the parties, and will distribute the property in a way that it considers fair.


Marital Property Exceptions

Even if it was acquired during the marriage, certain property is exempt from being classified as “marital property” subject to equitable distribution. Under New York law, property such as inheritances, compensation for personal injuries, and property specified as separate in a written pre-nup or post-nup agreement, are classified as separate property.


Separate Property

Any property owned prior to the marriage is considered that party's own separate property. This means that such property belongs to the original owner and is not subject to equitable distribution in the divorce action. However, there are exceptions. For example, if you owned a piece of real estate before the marriage, and your spouse contributed to its improvements, the increase in value as a result of those improvements can be subject to equitable distribution.


Co-mingling

If marital funds become intermixed with what was once separate property, co-mingling has occurred. In such a case, the court may deem that the asset should be considered marital property subject to equitable distribution.


Division of property in a divorce case can be extremely complex depending upon the situation. In addition, what constitutes marital and separate property may have been affected if you and your spouse had entered into a prenuptial or postnuptial agreement. It is best to consult with a matrimonial attorney who can explain and advise you concerning the specific facts and circumstances surrounding your case.


The Law Office of Jessica M. Semins is available to represent clients for their matrimonial and family law matters. Jessica provides compassionate and understanding counsel to clients as they go through some of their most difficult times. The Law Office of Jessica M. Semins is available to represent clients throughout the five boroughs of NYC, Long Island, and Westchester and can meet with clients in Manhattan & Melville, Long Island at their convenience. Call (646) 397-6844 to schedule a consultation concerning your matrimonial matter today. Consultations are by appointment only.


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Attorney Advertising.  The content contained herein is not intended to be construed as legal advice, nor form an attorney-client relationship. (c) 2019 The Law Office of Jessica M. Semins, Jessica M. Semins, Esq.