Who will receive more assets in a divorce in New York?



 


You want to know who will receive the most marital property in a divorce in New York? What factors or criteria does the court take into account to assign more assets to one of the spouses? Who will receive less assets in a divorce in New York?


Knowing how the judge will divide the marital property is important to obtaining a successful divorce in New York. This allows you to show the court the reasons why you should receive more assets than your spouse.


So here I will leave everything on what reasons exist in New York to give more property to one of the spouses.


 


Will the court deliver half of the matrimonial property to each spouse in New York?


In a divorce in New York the court will not necessarily divide the marital property equally.


What does the court rely on to make a just division of marital property in New York?


 In New York, the court considers 15 factors or criteria to make a fair division of marital property. Which of the spouses will receive more marital property will depend on these factors. The factors for fair division are as follows:


 


NY Dom. Rel. Law § 236


In making an equitable distribution of property, the court shall consider, among others, the following factors:


 

In addition, the marital property will be distributed equitably between the parties, considering the circumstances of the case and the respective parties.


 (1) the income and property of each of the parties at the time of marriage and at the time of commencement of the action;


This means that if you are the one who has seen your estate diminished because of the marriage, you will be the one who receives a greater amount of assets.  


 


(2) the length of the marriage and the age and health of both parties;


This means that if you are an elderly person, or are not in good physical or mental health, you will receive a greater amount of assets.


It also means that the greater the number of years of marriage, the greater the amount of assets.


(3) the need for a custodial parent to occupy or own the marital residence and to use or own its household effects;


This means that if you are the one who will keep the children, you will receive a greater amount of assets. 


 


(4) loss of inheritance and pension rights upon dissolution of the marriage as of the dissolution date;


This means that if you are the one who will lose the right to inherit or the maintenance of your spouse, you will be the one who receives more in the distribution of the assets. 


(5) loss of health insurance benefits upon dissolution of the marriage;


This means that if you are the one who will lose health insurance, then you will be the one who receives the most in the distribution of assets. 


(6) any award of alimony under subdivision six of this part;


(7) any equitable claim, interest, or direct or indirect contribution made to the acquisition of such marital property by the untitled party, including joint efforts or expenses and contributions and services as a spouse, parent, wage earner, and homemaker and the career or career potential of the other party. The court will not consider marital property subject to distribution the value of a spouse's enhanced earning power arising from a license, title, celebrity reputation, or career enhancement. However, to arrive at an equitable division of the marital property, the court will consider direct or indirect contributions to the development during the marriage of the other spouse's enhanced earning capacity;


This means that if you were the one who helped increase the family's economic wealth, then you will be the one who will receive a greater amount of assets. 


It also means that if you contributed financially or household chores to your spouse so that he could get an education, the judge will assign a greater amount of assets to you to compensate for the effort made. An example of this is when one of the spouses works so that the other can study at a university.   


 


(8) the liquid or non-liquid nature of all marital assets;


(9) The probable future financial circumstances of each of the parties;


This means that if you are the one who will be left without financial resources due to the divorce, the judge will assign you a greater amount of assets to compensate.


 


(10) the impossibility or difficulty of evaluating any active component or any interest in a business, corporation or profession, and the economic convenience of retaining such asset or interest intact and free from any claim or interference by the other party;


(11) the tax consequences for each party;


(12) waste of assets by either spouse;


This means that In the event that your spouse is the one who contributed to reduce the economic patrimony, then he will be the one who receives less


(13) any transfer or lien made in contemplation of a matrimonial action without due consideration; 


This means that if your spouse was the one who transferred the property without good cause, in order to reduce the estate, then you will be the one who will receive more property to compensate for the loss. 


(14) if either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred and fifty-nine-a of the social services law, against the other party and the nature, extension , duration and impact of such act or acts.


This means that if you were a victim of domestic violence, you will be the one who receives the most assets. 


(15) any other factor that the court expressly considers fair and adequate.


This means that the judge will use his own discretion to assign more property to one spouse than the other, in order that the division becomes fair. 


 


Will the court consider the misconduct of one of the spouses in dividing the marital property in New York?


 In New York, the court does not take spousal misconduct into account when dividing marital property. This means that if you are the guilty spouse you may still receive more assets, and if you are the innocent spouse that does not mean that you are the one who receives more assets.  


 


 On what basis does the court perform the division of marital property in New York?


The court will divide the marital property according to what it deems fair.


 


 


What can I do to receive more assets in a divorce in New York?


You must demonstrate that the criteria and factors listed above are applicable to you. In short, you are the most injured party in the divorce.


 


Here are some important judgments in the distribution of property in New York:



Domestic Relations Law § 236 (B) (1) (d) (3) expressly provides that appreciation in separate property remains separate property, "except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (emphasis added). Moreover, Domestic Relations Law § 236 (B) (5) (d) (6) explicitly recognizes that indirect contributions of the nontitled spouse (e.g., services as spouse, parent and homemaker, and contributions to the other party's career or career potential) are relevant in the equitable disposition calculations just as direct contributions are. Thus, to the extent that the appreciated value of separate property is at all "aided or facilitated" by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution


Hartog v. Hartog

85 N.Y.2d 36 (N.Y. 1995)

7 Citing cases

Fields v. Fields

65 A.D.3d 297 (N.Y. App. Div. 2009)   Cited 10 times

Even if there were some factual basis for finding that indirect efforts of the wife played some causative role in the appreciation of the building (and there is not), only that part of the appreciation would be marital property. As the Court of Appeals stressed in Hartog, " to the extent that the appreciated value of separate property is at all aided or facilitated by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution " ( 85 NY2d at 46 [emphasis added; other emphasis deleted; internal quotation marks omitted]). The majority's reliance on Heine v Heine ( 176 AD2d 77, lv denied 80 NY2d 753) is woefully misplaced.


Smith v. Smith

475 S.E.2d 881 (W. Va. 1996)   Cited 6 times

This determination was based on New York statutes, which the court summarized as follows: Domestic Relations Law § 236(B)(1)(d)(3) expressly provides that appreciation in separate property remains separate property, " except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (emphasis added). Moreover, Domestic Relations Law § 236(B)(5)(d)(6) explicitly recognizes that indirect contributions of the nontitled spouse (e.g., services as spouse, parent and homemaker, and contributions to the other party's career or career potential) are relevant in the equitable disposition calculations just as direct contributions are. Thus, to the extent that the appreciated value of separate property is at all "aided or facilitated" by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution. 623 N.Y.S.2d at 542, 647 N.E.2d at 754 (citations omitted).


Bartha v. Bartha

15 A.D.3d 111 (N.Y. App. Div. 2005)   Cited 12 times

There is a "presumption in favor of marital property, premised on the contemporary view of marriage as an economic partnership, crediting each party's contributions, whether monetary or not, to the growth and value of the marriage" ( DeJesus v. DeJesus, 90 NY2d 643, 648). The term marital property must be broadly construed in order to give effect to the economic partnership concept ( Price v. Price, 69 NY2d 8, 11), and assure that " to the extent that the appreciated value of separate property is at all `aided or facilitated' by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution " ( Hartog v. Hartog, 85 NY2d 36, 46). To the extent defendant establishes that a portion of the down payment for the Manhattan townhouse was from funds of his parents which had not been intermingled with marital funds, or from his own separate property, he is entitled to a credit for that contribution; but, otherwise, the property, or at least the 75% interest therein currently held in defendant's name, is marital property ( see Heine v. Heine, 176 AD2d 77, 84, lv denied 80 NY2d 753). The appreciation of the value of the house, from $395,000 to $5 million, was unrelated to the down payments, but very much related to the complete gutting and renovation which was largely overseen by plaintiff, and paid for out of the parties' marital funds ( id.). Furthermore, the mortgage payments were made entirely from marital funds, at least from 1988 on, and possibly during the earlier years as well.


Robert M. v. Hristina M.

2010 N.Y. Slip Op. 51766 (N.Y. Sup. Ct. 2010)

After factoring the $135,000.00 still owed the plaintiff's father, the practice has $395,000.00 in equity. "Domestic Relations Law § 236(B)(1)(d)(3) expressly provides that appreciation in separate property remains separate property, "except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (emphasis added). Moreover, Domestic Relations Law § 236(B)(5)(d)(6) explicitly recognizes that indirect contributions of the nontitled spouse (e.g., services as spouse, parent and homemaker, and contributions to the other party's career or career potential) are relevant in the equitable disposition calculations just as direct contributions are. Thus, to the extent that the appreciated value of separate property is at all "aided or facilitated" by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution." Hartog v. Hartog, 85 NY2d 36 (1985).


Robert M. v. Christina M.

29 Misc. 3d 1209 (N.Y. Sup. Ct. 2010)

00 in equity. “Domestic Relations Law § 236(B)(1)(d)(3) expressly provides that appreciation in separate property remains separate property, “ except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse ” (emphasis added). Moreover, Domestic Relations Law § 236(B)(5)(d)(6) explicitly recognizes that indirect contributions of the nontitled spouse (e.g., services as spouse, parent and homemaker, and contributions to the other party's career or career potential) are relevant in the equitable disposition calculations just as direct contributions are. Thus, to the extent that the appreciated value of separate property is at all “aided or facilitated” by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution.” Hartog v. Hartog, 85 N.Y.2d 36 (1985). Plaintiff correctly notes, that an asset, such as a professional practice, is not necessarily subject to equal distribution.

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