November is the time of the year when gift-giving is on everyone’s minds. Nearly 30% of some retailers’ annual sales are holiday shopping. Some may worry that they will have to share some of their goodies with a soon-to-be ex-spouse. In most cases, that will not happen.
New York’s equitable distribution law outlines what property is considered separate or marital property. Courts allow each spouse to retain their separate property. Marital property is distributed equitably, but not necessarily equally. Property division in a divorce aims to be fair, which can be one spouse receiving a greater share.
Gifts Are Separate Property
When your best friend, mom, or any other special person in your life gives you a gift, that gift is yours to keep. The courts will not make you give your ex that designer purse from your friend.
Separate property in New York is defined as follows:
- Property acquired before marriage
- Property acquired by bequest, devise, or descent
- A gift from someone other than your spouse
- Compensation for personal injuries
- Property designated as separate property in a written agreement (such as a prenuptial or postnuptial agreement)
There are some exceptions to the rule. A gift given to both you and your spouse is marital property. If an inheritance is left to you and your spouse, the property will be considered marital property. If you use your solo inheritance to buy a vacation home for you and your spouse to enjoy, your spouse could argue that they have an equal right to the house. Putting your inheritance into a joint saving account could also be the foundation for a marital property argument.
Categorizing Property for Distribution
Determining how to categorize all property (and debt) is not as simple as it sounds. This is especially true in high-net-worth divorces or couples who have been married for a long time. After classifying property, deciding how to divide everything is just as complex.
Most divorces are negotiated outside of the courtroom with the help of skilled attorneys. These agreements can be creative in splitting up who gets what, including debt responsibility. Divorce settlements are typically approved by a judge unless they determine one party is being treated unfairly.
For those divorce cases that go to court, New York has rules on what a judge must consider in property distribution decisions:
- The income and property of each party at the time of marriage, and at the time of the divorce filing
- The length of the marriage
- The age and health of each spouse
- The custodial parent’s need to occupy/own the marital residence and use/own household contents
- The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution
- The loss of health insurance benefits upon dissolution of the marriage
- Any award of spousal maintenance
- Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having the title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party
- The court will not include the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement (except in how the other spouse’s efforts enhanced the earning capacity of the other spouse)
- The liquid or non-liquid character of all marital property
- The probable future financial circumstances of each party
- The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation, or profession, and the economic desirability of retaining such asset or interest intact and 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
- Whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration, and impact of such act or acts
- Any other factor which the court shall expressly find to be just and proper
Pets are no longer the equivalent of a kitchen table. As of October 2021, the new law requires the court to consider the best interest of a companion animal when determining which spouse should retain ownership.
Legal Guidance for Property Division in a Divorce
Talented legal counsel is crucial whether you negotiate your divorce agreement or take the case to court. At Jason M. Barbara & Associates, P.C., we have extensive experience in and out of the courtroom. The client’s best interests are central to our strategy, which is customized for each client.
If you need an attorney for your divorce in Long Island or any of the five boroughs, contact us for a free consultation. Scheduling by contacting us online or calling (516) 406-8381.