In most states, the law requires that a judge divide marital property fairly. That usually means that each person gets about half of the assets.
But in some cases, a judge might decide it is fair to give more to one person than the other. Those decisions are made based on several factors, including how long the marriage lasted and each spouse’s contributions to the family.
What is Marital Property?
Marital property refers to anything that a couple owns or has earned during the marriage. This can include assets like bank accounts, paychecks, and real estate.
It can also include debts incurred during the marriage. This includes mortgage loans, credit card bills, and tax obligations.
Generally, the value of marital property will be split evenly between spouses. However, this is not always the case.
There are certain factors that the court will consider when determining what is equitably distributed.
This can vary from case to case and from state to state. It is important to know what your state’s laws are before you file for divorce.
Marital property can also include assets and property that were acquired before the couple’s marriage. This includes assets such as money, cars, and other items that one or both spouses had before they got married.
What is Separate Property?
When a couple gets married, they often enter into a binding agreement that will bind them together for life. That includes agreeing to share property.
However, while most of the assets acquired during the marriage will be considered marital property, there are also some that will remain separate property. This category includes property that the spouse has acquired before or after the marriage, as well as inheritances or gifts, or awards or settlements received for personal injury.
Whether a spouse acquires separate property during a marriage depends on the state in which they reside. New York law allows a spouse to acquire separate property during a marriage by inheritance or gift, or by using funds acquired prior to or during the marriage to pay for a separate property item.
It is important to note, however, that some properties can be commingled with marital property and become difficult to identify as separate property. That is why it is important to have a professional estate planning attorney help you create a plan that will allow you to keep your separate property during a divorce.
How is Marital Property Divided?
During a divorce, the court must divide all property fairly. In New York, this is known as equitable distribution.
In most states, marital property includes anything that a spouse earned during the marriage or acquired with marital funds. This includes wages, retirement accounts, investment accounts, real estate, personal property, and mortgages.
It also includes gifts and inheritances given to a spouse during the marriage. Gifts and inheritances that are not commingled (mixed with other assets) are considered separate property.
But it is not uncommon for separate property to change into marital property. This usually happens if a spouse mixes their separate assets with joint assets during the marriage, such as depositing a certificate of deposit into a joint account.
Length of marriage is another factor that is often used by the court in determining how to split marital property. This makes sure that a short-term marriage doesn’t unfairly benefit one party over the other.
How is Separate Property Divided?
There are two categories of property that are usually divided in a divorce: separate and marital property. The way that each is split depends on the state you live in.
In most states, marital property includes anything that the couple acquired during the marriage. This includes things like money earned from employment, pension plans and IRAs.
However, if you acquired some of your assets before the marriage or received gifts or inheritances specifically given to you, that’s separate property and likely not subject to division in a divorce. Similarly, proceeds from certain civil lawsuits may also be considered separate property.
In some cases, you and your spouse may have signed a prenuptial agreement that clearly defines which properties are separate and which are marital. This can help you to avoid a lengthy and costly legal battle over property rights. Alternatively, you and your spouse can reach an agreement on your own without the court’s assistance.
