Articles Posted in Equitable Distribution

For some time now on this blog, I have been publishing these bullet point guides, which are a blend of my blogs over the years, as a solution for people who need to learn more about divorce. The end of a marriage is a complicated thing, and the complexities of your case may begin to feel overwhelming when you’re approaching litigation for the first time. These bullet guides aim to provide an easy-to-access way to answer some of your most pressing questions.

In this bullet point guide, we will be looking specifically at marital and separate property in divorce equitable distribution, as well as the role that taxes might play in separating assets. We will also touch on the decisions to be made about business ownership during a New York divorce.

Defining Marital and Separate Property

As mentioned in previous blog posts and guides, the process that New York courts use to distribute assets between two parties in a divorce is called equitable distribution. This process involves sharing “marital assets” based on what the court considers to be just and fair.

• Marital assets are broadly defined by the New York law for Domestic Relations as property obtained after the date of the marriage and before a separation agreement is executed, or the filing of a divorce case.
• Separate property is not included in equitable distribution considerations under the Domestic Relations Law. Separate property is anything that was kept separate and either acquired before the date of the marriage, or the property that was received by one party as a gift or inheritance. Sometimes, personal, or separate property may also include personal injury awards.
• In New York divorce cases, marital property can include a range of things, including retirement and pension benefits acquired within the marriage, automobiles, real-estate, furniture, stocks, bank accounts, and even business components. All marital property must be equitably distributed according to the laws of New York, unless there is an agreement otherwise.
• When determining how to divide marital property between two spouses, the courts will often consider a variety of things, including the current income of each spouse, their age, their earning potential, their health, and the contributions that each person made to the marriage, both financial and otherwise.

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Recently, I’ve been updating my blog with a series of bullet-point guides intended to help people who want to learn more about divorce litigation. This area of law can be a very complicated one for many people, and it’s often difficult to find the answers to all the questions you might have.

This bullet-point series bring together some handy insights on divorce litigation that I have written about over the years, and the concerns that might arise during a case. In this particular bullet point list, we’ll be looking at the concept of marital debt, and how it could be divided in a divorce – just like marital assets.

We’ll also look at the family home, and how the courts approach splitting the value of the home between partners. Continue reading ›

There are a lot of complicated components in family law that need to be addressed when a divorce takes place. That’s one of the reasons why I’m creating this bullet point guide, to help people find the answers to the questions that are most important to them.

In today’s guide, we’re going to be looking at the guidelines in place for things like health insurance and medical expenses when dealing with divorce.

Ongoing Health Insurance Benefits in Divorce

In most cases under New York Domestic Relations law, the courts will consider any assets accumulated during a marriage as “marital property”. However, this can leave a lot of things open to speculation. For instance, a question that often arises is how your divorce lawyer can ask a court to address pension and healthcare benefits in a divorce.

• Typically, pension benefits can be subject to equitable distribution in a divorce. The pension benefits that a party accrues when married can be seen as a marital asset. However, the portion of benefits of obtained before the marriage and after the filing date of the divorce action isn’t considered an asset of the marriage. Pension plans, however, often contain more than just provisions for future financial compensation. These plans often provide for continued health insurance too.
• While courts consider pension plans in equitable distribution, that’s not always the case for health insurance coverage. Courts issued an opinion a few years ago that a husband/s pension plan of lifetime healthcare coverage wasn’t a marital asset, and that it shouldn’t be split between the husband and wife. The court also noted that the wife wouldn’t totally lose out in this matter, because “loss of insurance benefits” would be considered in the equitable distribution analysis of other assets.  Keep in mind also, as part of the Automatic Orders involved with a litigated divorce, health and other insurance benefits that were in place before the filing date of the divorce must continue while the divorce is ongoing unless an agreement or court order is made to the contrary.

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Assets aren’t the only thing that may need to be distributed between two parties when a divorce takes place. Some couples need to think about distributing their debts too – particularly when there is a dispute about whether the couple agreed to take on those financial commitments together or not. In order to prove to the courts of New York and Long Island that a debt should be split, parties must provide some crucial information. Most commonly, the courts will require some evidence that the debt was incurred either for the benefit of the other party, the household, or with the other party’s permission. This is a way that something may be considered marital debt, rather than just “individual” debt.

In most instances the debt that exists at the time of filing the divorce will be open to consideration by the courts. Usually, any debts that are taken on after the divorce case is filed won’t have any traction in the case. However, I have found some exceptions to this rule. For instance, in the case of G.T. v. A.T., 43 Misc. 3d 500, 501, 980 N.Y.S.2d 255, 256, the court was prepared to consider any debt incurred when the divorce was ongoing. However, the court ended up ruling that it was not going to distribute the debt that was incurred during the pendency of the divorce, simply because neither side was able to show evidence that the debt was made with the other’s permission.

In the case above, the plaintiff had a discover card in their name and a Visa and Mastercard in the name of the defendant. The two parties had accrued debt on all of the cards during the pendency of the case. However, as no evidence was available to suggest that the debt was incurred for the benefit of the other spouse, or with the other spouse’s permission, that debt was not be treated as marital debt. My experience is that if post filing expenses or debt is going to be an issue that the parties would want to attempt to get a Pendente Lite Order from the court. This is an order that provides for payments to be made for support and expenses while the divorce is ongoing. Continue reading ›