In any divorce, the distribution of marital property is almost inevitably a source of major conflict. That said, many people go into a divorce without understanding the process of equitable distribution, which is how marital property gets divided by the courts. Here are five things you should know about equitable distribution if you are getting a divorce, or planning on getting a divorce:
- Equitable distribution does not mean equal distribution
- It would be convenient if the process of equitable distribution just involved taking the total value of your marital property, splitting it in two, and making sure there was an equal amount of value on both sides. For better or worse, though, “equitable” distribution is about making sure the divide of property is fair, rather than equal. This may mean the property may be divided 60-40, 70-30, or sometimes with even more lopsided splits.
- Not all personal property is marital property
- When equitable distribution divides marital property, that is meant to distinguish marital property (the property shared between both spouses) and their individual, separate property (property only one spouse owns). This is often difficult to untangle, as many married people will commingle their personal property with their spouse’s property during marriage. Thus, a substantial part of the debate over division could simply include deciding what counts as part of the marital property to be divided.
- You might be surprised at what counts as property
- Marital property naturally includes obvious assets, such as bank accounts, cars, houses, and other physical items. However, it can also include “property” that is not yet yours, such as pensions or retirement benefits, depending on whether they have vested or not. In some cases, even more abstract types of property, such as a college degree or other certificate earned during the marriage, may qualify as marital property for the purposes of equitable distribution, although New York generally no longer recognizes educational degrees as marital property.
- Debt is also divided, along with assets
- Unfortunately, debt is also a kind of property, and gets divided along with everything else. This can include mortgage debt, credit card debt, or any other loans or lines of credits you may have taken out during your marriage. Deciding who is responsible for what debt is also an important part of equitable distribution.
- Many factors are included in deciding what is “equitable”
- Deciding exactly what constitutes “equitable” distribution is not a straightforward process. A large number of factors are considered as part of the process, including: the income of both spouses, the length of the marriage, whether one spouse will lose health insurance due to the divorce, whether one or both spouses will be caring for minor children or other dependents, whether child support or spousal maintenance has been awarded, and more. Negotiating these issues is an important part of why you need an attorney knowledgeable in divorce law to help you navigate any potential hurdles that may arise.
If you are going through a divorce, or are planning to, an experienced attorney can help protect your finances and legal rights. Whether your divorce involves a situation with complex assets or few assets, an experienced matrimonial attorney can help ensure an outcome that protects your interests. The divorce lawyers at Blodnick, Fazio & Clark are skilled and experienced in representing clients in all aspects of matrimonial and family law. Call (516) 280-7105 or fill out our contact form to arrange a free consultation.
