When a Staten Island couple decides to end their marriage, soon they will have to determine how they are going to divide their property and debts. If there was a well-drafted prenuptial or postnuptial agreement, the method of property division will be contained therein. In the absence of a prenuptial agreement, property division can take one of two paths: 1) the couple can collaborate until they reach a divorce settlement, or 2) a judge can divide the couple’s debts and marital property according to New York’s laws of equitable distribution.
In the United States, there are two methods of dividing marital property: community property and equitable distribution. New York, like our neighbors New Jersey, Connecticut, and Pennsylvania, and the majority of states, follows the “equitable distribution model.”
Under the equitable distribution model, if a couple cannot reach a divorce settlement, a judge will have to step in and decide for them. Under the theory of “equitable distribution,” marital property is divided in a manner that is considered equitable or fair (not necessarily equal) given the facts of the case. In the majority of divorces, couples go back and forth until they reach an agreement. The court only steps in if a couple cannot reach a compromise on their own.
Separate Property is Not Divided
Suppose the court ends up dividing your marital property. In that case, only marital property will be divided; separate property will remain separate. Generally, marital property refers to all property acquired during the marriage, regardless of which spouse earned it or whose name is on title. In contrast, separate property includes:
- Personal injury awards to one spouse.
- Gifts to one spouse alone.
- Inheritances bequeathed to one spouse.
- Property acquired before the marriage.
Note: Under certain circumstances, the increased value of separate property, such as the increased value in a home, or a piece of real estate, or a classic automobile, may be counted as marital property and that portion would be subject to division.
When a judge is dividing a couple’s marital property, he or she will consider a number of factors, such as the age and health of both parties, the length of the marriage, the income and assets of both spouses, and each spouse’s potential earning capacity.