Division of Property

Division of Property

Matters of divorce, child custody and property division deserve attention from a family law attorney who knows how to protect your rights.

Division of Marital Property

If you are getting divorced in New York, it is important to understand the legal concepts behind division of the marital estate. All marital property that is the subject of a New York divorce is subject to equitable distribution.

People often assume that equitable distribution means an equal division, but it does not. The term equitable does not mean equal, it means just and fair. In limited cases, it may be necessary for a court to award one party to a divorce a greater share of property based on financial need and the financial needs of any minor children.

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If you are getting divorced in Dutchess County, New York, contact the experienced divorce and family law attorneys at Brooke & Brady, LLP. Call 845-454-2540 to contact our law office in Poughkeepsie, New York. We can help you understand your rights and answer any questions you may have about child support, spousal maintenance and the difference between separate property and marital property.

Our lawyers have considerable experience in a wide range of family law matters, including divorce, child custody and visitation, spousal support claims, domestic violence, paternity, protection of parental rights, grandparent’s rights and marital property division. To speak to a divorce and family law attorney about your legal rights, contact Brooke & Brady, LLP.

Our lawyers have considerable experience in a wide range of family law matters, including divorce, child custody and visitation, spousal support claims, domestic violence, paternity, protection of parental rights, grandparent’s rights and marital property division. To speak to a divorce and family law attorney about your legal rights, contactBrooke & Brady, LLP.

If you are getting divorced in Dutchess County, New York, contact the experienced divorce and family law attorneys at Brooke & Brady, LLP. Call 845-454-2540 to contact our law office in Poughkeepsie, New York. We can help you understand your rights and answer any questions you may have about child support, spousal maintenance and the difference between separate property and marital property.

When a couple has little or no marital property, no children and no disagreement on spousal maintenance/alimony, their divorce usually goes very quickly. Most couples, however, have numerous issues to work out during the divorce process. These issues may involve children or significant marital property: personal property, real estate, a family business, large or concealed debts, trusts, real property in other states, joint and separate accounts, investments, insurance, pensions and other assets. In any divorce, especially one involving complex property matters, an experienced family law attorney from Brooke & Brady, L.L.P. in Poughkeepsie, New York, can offer valuable guidance and advocacy.

Non-community property states

Most states are non-community property states. This means that the courts must make an equitable division of property during divorce proceedings. Although the specific definition of equitable division of property varies from state to state, it is generally the division of marital property in a fair and just manner according to the specific circumstances of the divorce/dissolution of marriage. Equitable, however, does not always mean equal.

When one spouse obtains property in a community property state, generally the other spouse automatically gains a half-interest in it. In non-community property states, on the other hand, the other spouse only has an interest in the property upon filing for divorce or upon the death of the other spouse.

Courts in non-community property jurisdictions consider numerous factors in allocating property; the factors vary from state to state. However, the courts agree on a few basic, non-financial factors that are appropriate to consider:

  • Spouse’s homemaking activities, including child care, food preparation, cleaning and laundry
  • Spouse’s forgone opportunities, including not pursuing further education/degrees or a career opportunity
  • Spouse’s social obligations, including hosting or attending social events in support of the other spouse’s career

Prenuptial agreements can go a long way toward shaping the outcome of property distribution decisions.

Marital property

Property that must be allocated upon divorce is usually property that was acquired during the marriage — in other words, marital property. In most cases, property acquired before the marriage, property acquired after the divorce and gifts or inheritances received by one spouse during the marriage are not considered marital property.

Once the court decides which property is marital property, it must determine the value of the property. Then, it allocates the property between the spouses. If you and your spouse are able to agree upon the allocation of property and other important matters, you will have a far greater influence over the court’s ultimate decision.

Certain kinds of property continue to create controversy during divorce. Divorcing couples should be aware of the issues these assets present.

  • Family home. The primary residential property owned by the divorcing couple is often the marriage’s largest asset. Dealing with its division can be complicated, particularly when there are children involved. Courts often favor allowing the custodial parent to retain the home. Doing so may require complicated arrangements to ensure that the spouse who does not live in the home receives adequate compensation for the home’s value, as well as provisions for ongoing mortgage payments, tax liabilities and upkeep of the home. When these issues cannot be resolved, the couple may be forced to sell the home and divide the proceeds.
  • Pensions. Pensions often are the second-largest marital asset. A court in a divorce case may enter a Qualified Domestic Relations Order (QDRO) requiring the administrator of the ERISA-regulated pension to make payments to both the worker and the former spouse.
  • Family-owned businesses. When spouses work together in a family-owned business, division of the business presents complex allocation and valuation problems. As with family homes, if there are not enough marital assets to compensate the non-retaining spouse adequately, a forced sale or long-term buyout may be necessary.

Speak to a divorce lawyer

Many couples have a difficult time reaching an agreement about how to divide their property. Because the rules in each state vary significantly and because the ultimate division of property depends on the complexity of your assets and liabilities, it is important to consult with an experienced family law attorney at Brooke & Brady, L.L.P. in Poughkeepsie, New York, for assistance.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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