Marital assets are divided in New York by a process called “equitable distribution.” The word “equitable” means fair, so in theory a court could divide marital property in any way that it determined was fair. In practice, the courts nearly always divide marital property equally, but there are exceptions.
Some property is not considered marital at all and therefore not subject to equitable distribution. Property that is inherited by one spouse is separate property, not subject to equitable distribution. Gifts from a third party to a spouse (not from one spouse to the other) are separate property. Also, property that a spouse acquired before the marriage and is kept separate during the marriage is separate property.
The value of a business owned by a spouse and the value of a degree obtained by a spouse during the marriage are considered to be marital property, but generally these two types of property are not divided equally. Recently, most courts have been granting the non-titled spouse (the one who did not obtain the degree or was not the owner of the business) far less than 50%, often as little as 10% or 20%. In order to determine the value of such assets so that they can be distributed, they must be appraised by a qualified forensic accountant.
The value of a marital residence is an asset subject to equitable distribution, but it is not always sold. In an appropriate case, the court can allow the custodial parent (the parent spending the majority of time with the children) to remain in the residence until the youngest child graduates from high school. The parent occupying the household must pay all of the bills including the mortgage, real estate taxes, utilities and upkeep, but she (or he) does not have to incur the difficulty and expense of relocating the children to a new home or perhaps a new neighborhood. The courts realize that allowing the custodial parent to stay in the residence is an imposition on the non-custodial spouse, who is forced to wait for his share of the proceeds of the sale of the house. Thus, the court will only award exclusive occupancy of the residence to one party (as this is called) only where it is necessary for the benefit of the children.
Call David W. Teeter to discuss any Family Law Matters at 516-404-3832