Couples who have marital agreements know exactly what will happen when they divorce. They already set their property division rules in writing in their prenuptial or postnuptial agreement. The majority of couples divorcing in New York will not have an agreement dictating what they do with their assets, meaning they will have to arrange a settlement or have a judge handle the process for them.
Even if you hope to resolve your property division dispute outside of court, understanding how New York approaches property division will give you more leverage during that conversation. After all, if you cannot reach an agreement, then you will have to go to court and apply the state rules to your assets. How does property division work in a New York divorce?
The courts apply state law to your assets and debts
A family law judge tasked with dividing your assets will use the state’s equitable distribution standard as a guide for the process. The goal is for the judge to review your disclosed assets and debts to fairly divided your marital property between you.
Only marital assets are subject to division. The wages earned by either spouse during the marriage are typically marital property, and the same is true of everything you purchased during the marriage. Even your credit cards or student loans taken out during the marriage with the intent of supporting the family could be marital debt that the judge will have to split.
Assets you owned before you got married and anything that you inherited will usually be separate property that the courts will not divide. However, if there has been commingling of those separate assets with marital assets, then those separate assets could also be vulnerable during the property division process.
How can you determine who gets what?
Unfortunately, there is no reliable way to exactly predict the distribution of your assets in a contested New York divorce. Much is left to the judge’s discretion, and everything from the length of your marriage to your custody arrangements can influence what a judge believes is fair and appropriate.
The only way to retain control over the division of your property is to reach a settlement with your spouse outside of court, possibly through mediation if necessary. Thinking about your hopes for the future can help you establish practical goals for property division in pending New York divorce.