What Property is Marital Property in a NY Divorce?
Domestic Relations Law defines the term "marital property" to mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in an agreement (prenuptial or postnuptial agreement), or that which is Separate Property. Basically, any property that is earned or acquired during the course of the marriage is marital property.
This may include the marital residence, vehicles, retirement accounts, bank accounts, stocks, bonds, mutual funds,
interests in businesses, and other items of property acquired during the marriage. Professional licenses, and college & advanced degrees are no longer considered marital property because of legislation passed in 2016.
What Property is Separate Property in a NY Divorce?
Separate Property is often referred to as the property that was acquired before the marriage,
however, some property is still separate that had been acquired during the course of the marriage. The following
is a list of property that is characterized as Separate Property:
Property acquired before the marriage or property acquired by bequest, devise, or descent (inheritance), or gift from a party other than the spouse.
Compensation for personal injuries, excepting punitive damages.
Property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.
Veteran's benefits exempt from attachment, levy or seizure pursuant to the laws of the United States, except when a Veteran has waived a portion of his military retirement pay in order to receive Veteran's compensations.
How is Marital Property Divided in a NY Divorce?
The Marital Property is Divided by a process known as Equitable Distribution. The Court uses Equitable Distribution to distribute marital property upon the dissolution of the marriage based on what is fair under the circumstances. Equitable Distribution does not mean "equal distribution" but sometimes to avoid conflict marital property is divided equally. The following
"Factors", are used by the Court to determine how marital property is divided:
Income of each party at time of marriage, and when the divorce action was brought.
Property of each party at time of marriage, and when the divorce action was brought.
Length of the marriage.
Age and Health of each of the parties.
The need for the custodial parent to occupy or own the marital residence.
The need for the custodial parent to use or own household goods and furnishings.
The loss of inheritance rights upon dissolution of the marriage.
The loss of pension rights upon dissolution of the marriage.
Whether maintenance will be awarded.
The equitable claims to the marital property by each party.
The direct or indirect contribution to the acquisition of the marital property by each party including the contribution as a spouse, parent, wage earner and/or homemaker.
The direct or indirect contribution of one party to the career or career potential of the other party.
Whether the marital property can be liquidated.
The probable future financial circumstances of each party.
The ability to evaluate the asset or interest in marital property.
The desirability of retaining the asset or interest, free from any claim or interference by the other party.
The tax consequences to each party.
The wasteful dissipation of marital assets by either spouse.
Any transfer of marital assets, or encumbrances put on marital assets, by either party prior to the commencement of the matrimonial action.
Any other factor which the Court finds to be just and proper.