New York uses a legal principle called equitable distribution for property division in divorces. The court will divide the marital property between you and your spouse fairly and equitably. However, equitable distribution does not necessarily mean your property will be divided equally. The court will consider many factors when engaging in property division. Working with an experienced attorney can protect you and your interests during the property division process.


What Constitutes Marital Property in New York?

Under New York law, only the couple’s marital property is divided in a divorce. Each spouse’s separate property will remain with the spouse who owns it after the divorce. Typically, marital property includes any assets and property that one or both spouses acquired during the marriage. Retirement benefits or appreciation of businesses or property obtained during the marriage are typically considered marital property. Regardless of which person’s name the property is in, assets you or your spouse acquire during your marriage will be subject to property division in New York. 

Until the day your divorce is finalized, marital property can continue to appreciate or depreciate. For this reason, it’s important that you work with an attorney who can ensure that your property is appropriately classified as marital or separate property. For example, your soon-to-be ex-spouse may try to argue that your separate property should be classified as marital property so that they can obtain a portion of it. It is also important that you correctly value your assets, including all the following:

  • Art and jewelry
  • Retirement benefits and pensions
  • Automobiles, recreational vehicles, and any other vehicles
  • Marital debt
  • IRAs and 401Ks
  • Family homes and vacation homes
  • Family businesses or practices
  • Savings and checking accounts
  • Retirement savings
  • Real estate
  • Stock portfolios
  • Furniture and personal property
  • Intellectual property


Separate Property in a Divorce

Separate property, also called non-marital assets, remaining with the owner after the divorce. In New York, separate property is subject to division by the court, but there are a few exceptions. You are permitted to keep your separate property unless you or your spouse contributed to the value of your separate property during the marriage. In most cases, separate property includes the following:

  • Assets you were your spouse owned before the marriage
  • Inheritances and gifts made to you by third parties
  • Settlements from personal injury lawsuits
  • Assets obtained from the sale of separate property


Factors Considered During Property Division

New York courts do not always divide marital property evenly or equally. Instead, they try to divide property equitably or fairly for both spouses. Multiple factors play into how courts determine the division of marital property. The goal is to divide debt and assets equitably, not necessarily evenly. There are two main ways to engage in property distribution. A couple can negotiate a property distribution settlement out of court. Attorney Jayson Lutzky can help you negotiate a settlement that protects your personal goals and considers your unique circumstances. He will take time to understand your case and priorities and work diligently to create a settlement agreement that protects you.

However, it is not always possible to agree out of court. When a couple cannot agree, a New York Court judge will step in and divide their property. Once the court has classified the property as marital and separate, they will divide the marital property by using numerous factors, such as:

  • Each spouse’s age and health
  • Property and income of each spouse during the marriage
  • The length and duration of the marriage
  • Potential rights to spousal maintenance
  • Loss of pension, inheritance, disability, or retirement rights after divorce
  • The tax consequences of the property distribution
  • Whether the custodial parent needs the marital home


Dividing Family Businesses or Practices

When it comes to property division during a divorce, dividing family businesses or practices can be among the most complex. However, New York courts regularly engage in the equitable division of marital businesses or professional practices. The financial appreciation of the business can be considered marital property, even if you did not own the business before you were married. 

Dividing a business you and your spouse started or worked together to develop can be challenging, especially if you do not agree on what should happen with the business. For example, suppose one spouse wants to sell the business and divide the profit from the sale. The other spouse may want to keep the business and continue working at the business. Attorney Jayson Lutzky Has extensive experience in negotiating equitable divisions of family businesses. He can help you evaluate your situation and understand your options. He will advocate for your best interests throughout the entire process.


Dissipation of Assets (Marital Waste)

If you are pursuing a divorce, you may be concerned that your spouse will begin to spend your assets to an extreme extent. This practice is called marital waste, and it happens when one spouse wastes marital assets without the other spouse’s consent. Marital waste can occur during the marriage, but it often occurs once the parties agree to divorce. One spouse may spend a significant amount of money on gambling, drugs, extramarital affairs, or giving money away to friends and family before the separation. If your spouse is engaged in marital waste, attorney Jayson Lutzky can help you prove to the court that marital waste has occurred. When successful, victims of marital waste are entitled to reparations from the spouse who wasted the marital assets. 


Call a Bronx Property Division Lawyer Today

One of the best ways to protect yourself and your assets is to create a prenuptial or postnuptial agreement. When creating this agreement, you can decide which property is considered separate and marital. Doing so can ease conflict and tension later on if a divorce occurs. If you do not have one of these agreements, it is crucial that you discuss your case with an experienced attorney. Attorney Jayson Lutzky can ensure that you protect your valuable property and assets during the property division process. Contact the Law Offices of Jayson Lutzky today to schedule your free initial consultation.