Marital Assets Versus Separate Assets — Who Gets What?

New York law mandates equitable distribution of marital assets when couples get divorced. The preliminary question in developing a plan to divide property fairly in which assets should be subject to equitable division in the first place.

What is marital property?

Under New York law, marital property includes property obtained during the marriage, with few exceptions, regardless of which spouse holds the title. Examples of marital property include:

  • The marital home
  • Vehicles
  • Retirement accounts
  • Vacation property and other real estate
  • Investments
  • Business interests
  • Advanced degrees and licenses

What is separate property?

Separate property is not divided in a divorce. Property may be considered separate if:

  • The property was owned by one party prior to the marriage
  • The property was inherited by only one spouse and kept separate from the marital estate
  • The property was a gift to one spouse from a third party and kept separate from the marital estate

How much property will I get?

All marital property is subject to equitable division. Though courts traditionally find equal or near-equal divisions of marital property to be equitable, they are not required to divide property down the middle. Instead, courts consider a variety of factors, such as:

  • The value of each spouse’s separate property
  • The duration of the marriage
  • Each spouse’s age, health and earning capacity
  • Retirement benefits available to each spouse after the divorce
  • Alimony awarded, if any
  • The ease with which assets can be divided
  • Tax consequences of each spouse
  • Other factors relevant to an equitable distribution of assets

Every case is different. An experienced family law attorney can review your specific situation and build a strong case to protect your assets and your rights in New York property divisions.  By: Lauren B. Abramson

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