In New York, the distribution of marital assets is a legal process known as “equitable distribution.” Quite simply, this phrase means that the assets will be divided based on what is fair, which is not necessarily equal. This process can be handled in court, or through divorce mediation. From there, a judge or an attorney will sort through the couple’s marital assets in relation to the status of their marriage to decide how the property should be split.
In most cases, the division of the marital assets will be based on the following factors:
- The age of each spouse
- The health of each spouse
- The income and property of each spouse (at both the start of the marriage and the date in which the divorce was filed)
- The duration of the marriage
- Whether alimony has been awarded
- The present and future financial needs of each spouse
- Who has primary custody of the children
Of course, there are often many other variables when considering the distribution of marital assets such as in the case of a long-term marriage. For those who have been married for 15 years or more, and their earnings often change based on the status of their family, which makes it difficult to divide assets.
There are many cases in which both spouses started their marriage earning a similar income, yet once they had children, one spouse continued to work while the other spouse stayed home to focus on raising their children. This results in drastically unequal earnings. Once the couple files for divorce, one spouse has a significantly higher income than the other, as well as a higher future income potential. In New York, a court will often rule this case with a split in marital assets that is uneven. The spouse that has a lower earning potential will most likely receive more of the assets than the spouse with a higher income.
Another factor that clients often inquire about is marital misconduct. This does not affect the division of marital property; however, it can affect how alimony is calculated. It is a component in how long alimony must be paid, as well as the amount. Although it is considered a factor, it is rare that it truly affects alimony, unless significant amounts of money were spent on the affair.
What is Marital Property?
Property that is commonly divided during a divorce includes:
- Family home
For some, debt is surprising, but it is treated just like any other marital property. The court will determine the debt as either marital property or separate property and then appoint ownership to it. This will then be divided in order to give a fair, or equitable result.
Litigation vs Mediation
Ligation for equitable distribution can be both very expensive and time-consuming, resulting in a complicated and even frustrating process. In order to get equitable distribution, a claim must be raised in the initial divorce complaint. Once this claim is made, the parties must exchange and review documents that are particular to certain assets. These assets include bank accounts, as well as brokerage and/or retirement account statements.
The parties then file paperwork to get to court and prepare a detailed analysis of assets and liabilities in the case. After the respective paperwork is filed, a hearing is not likely to take place for several months. Once the hearing takes place, both parties will sit in front of a judge-appointed attorney that will make recommendations on how the marital assets will be divided. Once the parties hear the attorney’s recommendations, the attorney will then review each party’s submissions and discuss his or her view on what a fair, or equitable, distribution of assets would be. The parties have the option of either accepting the attorney’s recommendations or preceding to a hearing where the attorney will both hear testimony and review evidence.
Following the hearing, the attorney will issue a report with his or her findings. Once the parties hear the findings they can choose to accept or file expectations. If the parties choose to file expectations, the case will then go before a judge for trial.
This process can seem complicated, confusing, and in fact very overwhelming, let alone the cost and time commitment. For these reasons, it might be more beneficial to choose divorce mediation. Divorce mediation is a much simpler process that involves fewer steps- and more importantly- less money. During mediation, the couple has much more control over the process and it avoids dealing with the court system altogether.
Divorce mediation consists of a meeting between both parties and a neutral attorney-mediator in which the marital assets are discussed, valued, and divided. This step avoids immediately filing a divorce complaint, as well as a long and battling list of paperwork. Not until after the parties have come to an agreement about the division of marital assets do the parties have to file the divorce paperwork. From here, the worst part is over, making waiting for the court to process the paperwork less frustrating and stressful.