One of the first questions that many divorce clients asks is “who gets the property?” The most highly contested parts of a divorce is who will get the property accumulated during the marriage. Like most other areas of the law, how marital property is divided depends on which state you live in. New York is not a community property state – instead, the marital property is divided based on a legal concept called equitable distribution.
In community property states, spouses are automatically entitled to half of everything the spouses obtained together during the marriage. However, in New York and other equitable distribution states, the court does not attempt to divide things equally. Instead, the courts look at many different factors to produce a fair division of property.
Some of the factors a court looks at when dividing property include the length of the marriage; the age and health of both parties; whether a custodial parent needs the use of the marital residence; the couple’s standard of living during the marriage; the past, current and future income of both parties; the childcare responsibilities during the marriage; whether one partner contributed to another partner’s education; the loss of a pension; contributions to the acquisition of marital property; whether a spouse wasted assets; prenuptial agreements and any other relevant factors.
Many clients believe that because their spouse was at fault in the divorce, such as by conducting an extramarital affair, they should be entitled to more assets. However, courts generally do not take misconduct into consideration when dividing assets, unless a spouse purposely liquidated assets or engaged in an activity to lose marital assets (such as gambling).
It’s critical that if you are going through a divorce, you work with an attorney who can help you maximize your distribution in order to make sure you get your fair share. If you’re in New York, call the Buffalo Family Law and Divorce Attorneys at Friedman & Ranzenhofer at 716-542-5444. We have seven offices in Western New York, and we will be happy to help.