Property division is quite often the most difficult process of divorce, especially when children are not present and child custody is not an issue. Property that may be divided includes the home, cars, boats, furniture, real estate, retirement savings, investments, earned income, and more. While New York courts do not necessarily divide property equally or evenly, the court seeks to make an equitable division.

How Will Separate And Marital Property Be Divided?

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In property division, “equitable” does not mean “equal.” Numerous factors play into determining the division of marital property. The ultimate goal of equitable property division is to divide property acquired during the marriage fairly – not necessarily evenly. Most states have their own sets of laws and rules regulating property division during divorce, and working with an attorney that has extensive knowledge of current New York law is critical. Our attorneys work to ensure that our clients walk away with what is most fair in their particular circumstance.

To learn more about how property distribution will work in your case, schedule a consultation with our experienced Albany property settlement lawyers. Call 518-462-4242 or e-mail our family law office today.

Will the Court Always Make the Final Decision?

If you and your spouse come to an agreement on your property division, the court does not need to intervene. However, if you can only come to a partial agreement on your property and belongings, the court will have the final say. An experienced attorney is necessary in these cases in order to advocate on your behalf.

How Equitable Property Distribution Works In New York

The court considers numerous factors to determine the equitable division of assets and debt:

  • Health and age of each spouse
  • Property and income of each party at all times during the marriage
  • Length or duration of the marriage
  • Loss of inheritance, pension, disability or retirement rights upon divorce
  • Potential rights to maintenance, alimony or support
  • Other property distribution (through spousal maintenance or other assets held as separate property)

Although the court will make final decisions regarding property division in divorce, it is important to have an experienced family law attorney advocating on your behalf. At The Colwell Law Group, LLC, our New York divorce attorneys evaluate your situation and present your case to the court to seek a fair division of property.

Defining Equitable Property in New York

In a New York divorce, there are two types of property: separate and marital, according to New York Courts. Separate property is any property that either spouse owns before the marriage, an inheritance, gifts received during the marriage from parties other than the other spouse, or injury payments that a spouse received during the marriage (from a settlement or a lawsuit). Marital property, on the other hand, is all property that was earned or acquired during the marriage, regardless of the name attached to that particular property. This includes pension and retirement plans; a 401K plan may be in one spouse’s name, but the state may not agree that it should all go to that spouse. As stated above, marital property is not necessarily divided evenly, but what is deemed to be equitable or most fair. The judge presiding over your divorce case must be made aware of all property and debt owned by each spouse; no assets should ever be hidden.

Disposition of Community Property Rights at Death Act and Defining Community Property

A common question those have who are going through divorce is whether or not community property is recognized in the state of New York. The short answer is no, however, The Disposition of Community Property Rights at Death Act of 1971 preserves the community property rights of each spouse when they move from a state that does recognize community property to one that does not, such as New York. For example, if a couple was married and lived in a state that recognizes community property, such as Arizona, and moved to New York and was then divorced, the 1971 Act would not deprive the spouses of their preexisting community property rights under Arizona’s laws. Community property is any property that is owned jointly between the two spouses. Usually included in community property is debt incurred during the marriage, income earned by either spouse, and personal and real property that was acquired during the marriage, such as real estate, vehicles, furniture, sports equipment, home appliances, and more.


How NY Courts Determine Separate vs. Marital Property During Divorce

Equitable property division in divorce requires classification of separate vs. marital property. Simply stated, anything an individual spouse owned prior to the date of marriage that has not been commingled remains separate property. Anything acquired or contracted during the marriage is presumed marital property and therefore is subject to division between the spouses. This can include retirement funds, 401(k)s, cars, the family house and other marital assets.

Get Started With A Consultation

When you come to our office in Albany for a consultation, we will further explain property division in divorce – including the exceptions and characterizations of your assets. To schedule an appointment, call 518-462-4242 or schedule a visit online. Let us advise you on the benefits, principles and problems you may face when characterizing these assets.

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