Who Gets What? Property Division and Divorce

One of the most contentious aspects of a divorce is dividing property. In one famous case, an enraged spouse cut the couple's home in half with a chain saw.

Fortunately, not all divorces get that out of hand. New York’s Equitable Distribution Law provides for the fair, though not necessarily equal, division of property in a divorce. This statute categorizes property into two types:

Separate property is generally excluded from division in a divorce. It includes property that was owned by one spouse before the marriage. Any inheritance one spouse gets, even during marriage, is separate property. There are instances in which separate property – or the increase in its value – can become marital property.

Marital property includes property obtained by either spouse during the marriage, regardless of whose name is on the title. For example, if only one spouse’s name was on the deed to a home they bought while married, the other spouse would still be entitled to a portion of its value. In a divorce, the court divides marital property based on considerations including:

• Each spouse’s income and property at the time of the marriage
• Each spouse’s age and health
• How long the marriage lasted
• Whether the custodial parent needs the home to care for the children
• The direct or indirect contributions of each spouse to the household (i.e., as a wage earner or homemaker)

Judges will also consider each spouse’s probable future financial circumstances (including support awarded in the divorce), the loss of inheritance and pension benefits and the tax consequences for each spouse. They might also take into account wasteful spending, property destruction or spousal abuse.

For solid guidance in the all-important division of property in a divorce, contact a skilled attorney today.