Each state has its own laws surrounding property division in a divorce. Your first step in negotiating a fair settlement should be to learn where your state stands.
Types of Property Division
Nine states follow “community property” laws:
- New Mexico
In community property states, both parties hold an equal stake in marital property. Courts in these states will likely divide all marital property down the middle.
All other states, including New York State, are “equitable distribution” states. This means that assets and liabilities are divided fairly. Note that this does not necessarily mean in half! In order to divide property fairly, the judge considers each spouse’s financial situation in the marriage. Because this can be complex, it is crucial to consult with an experienced divorce and family law attorney before you begin negotiations.
Some of the most common factors the court will consider when dividing property are:
- Each spouse’s occupation
- Each spouse’s relative earning potential
- How each spouse contributed to the marriage (e.g., working or taking care of children)
- The length of the marriage
- Each spouse’s age and health
- Whether the court has awarded alimony or child support
- The standard of living held during the marriage and how much each spouse will need to maintain that standard
Separate Property vs. Marital Property
Equitable distribution only applies to marital property. This means that property acquired during the marriage, including income, purchased property, retirement accounts, and interest income, will be divided, regardless of how the title is held.
Separate property, on the other hand, is not divided in a divorce. Separate property consists of assets acquired prior to or after the marriage. It may also include:
- Property received as an inheritance or gift
- Financial compensation due to personal injury
- Any appreciation on separate assets
Can You Negotiate Property Division Outside of Court?
It is much less costly when a couple can reach an agreement out of court. After all, a quick resolution means there is more marital estate left to divide. Spouses who are able to set aside their differences should consider mediation as a cost-effective alternative to litigation.
However, even the most cooperative couples will have disagreements. It is always in your best interest to understand your state’s stance on property division so you can negotiate with an understanding of the law.
An Equitable Distribution Attorney Will Explain Your Rights
Property division is a complex and emotional part of getting divorced. An experienced family law attorney will protect your rights and help you find a favorable resolution. Contact the law offices of Winkler Kurtz, LLP, or call us today at (631) 928-8000 to schedule a complimentary case evaluation.