What Property Is Subject To Equitable Distribution?

All property acquired by either or both parties during the marriage, but before execution of a separation agreement, and before the commencement of a matrimonial action, regardless of the form title is held. It does not include property provided for in a written agreement. It does not include “separate property”, which is defined as property acquired before marriage; property acquired by bequest, devise, descent or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property; property described as separate property pursuant to written agreement of the parties. However, the increase in the value of the separate property (or property acquired in exchange for the separate property) is marital property to the extent that the appreciation is due in part to the direct or indirect contributions or efforts of the other spouse.

What Is Equitable Distribution?

Equitable distribution is a method for distributing property acquired by owned by either spouse upon the dissolution of the marriage, which replaces “common law” principles of property ownership. Prior to the adoption of “equitable distribution” in New York, New York was a ”common law property” state. This meant that upon the dissolution of the marriage, the property owned by either spouse was distributed according to the manner in which title was held. New York is now an “Equitable Distribution State”. This means that upon dissolution of a marriage, the Court must distribute “equitably” all “marital property” regardless of the manner in which title is held, considering the following factors: Income of each party at time of marriage;

  • Income of each party at time of commencement of action;
  • Property of each party at time of marriage;
  • Property of each party at time of commencement of action;
  • Duration of marriage;
  • Age of both parties;
  • Health of both parties;
  • Need of custodial parent to occupy or own marital residence;
  • Need of custodial parent to use or own household effects;
  • Loss of inheritance rights upon dissolution as of date of dissolution;
  • Loss of pension rights upon dissolution as of date of dissolution;
  • Any award of maintenance;
  • Equitable claims to or interest in or direct or indirect contribution to the acquisition of the marital property by the party not having title, including:(a) Joint efforts;(b) Expenditures;(c) Contributions as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party;
  • Liquid or non-liquid character of all marital property;
  • Probable future financial circumstances of each party;
  • Impossibility or difficulty of evaluating any asset or interest in a business, corporation or profession;
  • The desirability of retaining the asset, or interest in the business, corporation or profession free from any claim or interference by the other party;
  • The tax consequences to each party;
  • The wasteful dissipation of assets by either spouse;
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
  • Any other factor which the Court shall expressly find to be just and proper.

What Are The Residency Requirements For A Divorce In NY?

Residency requirements give a New York court jurisdiction over the parties and the power to decide your divorce case. A New York court can only decide a divorce case if at least one of the spouses is presently a New York resident. In most cases, one of the spouses must have lived in New York for at least one year before trying to get a divorce.

What Are The Grounds For Divorce In New York?

  1. Irretrievable Breakdown: This has become one of the common grounds of divorce since its enactment. The relationship between you and your spouse has broken down irretrievably for at least six months. This is sometimes called a “no fault” divorce.
  1. Cruel and inhuman treatment: “Cruel and inhuman treatment” by your spouse. This means that your physical or mental health is in danger if you continue living together. However, if the abusive treatment happened more than five years ago, you cannot divorce for this reason if your spouse objects.
  1. Abandonment: Your spouse “abandons” you for at least a year. This means that your spouse has left you and does not intend to return, or you have been forced you to leave the marital abode.
  1. Imprisonment: If your spouse goes to jail for three or more years. However, if your spouse was released more than five years ago, you cannot divorce for this reason.
  1. Adultery: Your spouse commits adultery. However, this is not a reason for divorce if you do any of the following: encourage your spouse to commit adultery, forgive your spouse by having sexual relations with them after you discover the adultery, or commit adultery yourself. You also cannot divorce because of adultery if it has been more than five years since you discovered the adultery. You cannot testify yourself to prove adultery, so you must have a witness who can testify.
  1. Judgment of Separation: You and your spouse have not lived together because of a “Decree of Separation” or “Judgment of Separation”, given by the Court, for at least one year. You must obey all the conditions of the decree or judgment. It is unusual to have a Judgment of Separation because it requires similar proof to that needed for a divorce. Most people skip the Judgment and go directly to divorce.
  1. Separation Agreement: You and your spouse have not lived together because of a written “Agreement of Separation” for at least one year. Both you and your spouse must sign this agreement before a notary. You must obey all the conditions of the agreement. This is sometimes called a “conversion divorce”. Conversion divorces allow divorces based upon a Separation Agreement that you already had in place for a full year. The Separation Agreement is turned into a divorce. Even if you want a divorce on other grounds, a Separation Agreement can make a divorce faster and easier. 

What Is a Divorce?

A divorce is referred to in some states as the dissolution of marriage and is a decree by a court that a valid marriage no longer exists. A divorce leaves both parties free to remarry. It usually provides for the division of property and makes arrangements for maintenance (the present form of alimony) as well as child custody and support.

Do I Need a Trust?

What if I don’t draft a will?

If you pass away without a valid will, your estate will be distributed according to New York intestate laws.   

If the decedent leaves no children, then the surviving spouse is entitled to the entire estate. If there are children and a surviving spouse, the spouse is entitled to the first $50,000 and the rest of the estate is divided equally between the two parties.   

If there is no surviving spouse, then the children receive the estate. The decedent’s parents receive the entire estate if there is not a surviving spouse or child. Creating a will, however, can help you distribute property differently and may be beneficial for you and your family.

Where Do You Go to Get a Divorce?

All Divorce proceedings are held in the Supreme Court of the county that you or your spouse reside in.

Family Court can order support or custody, but cannot grant a divorce.