‍Going through a divorce can be one of the most stressful times of your life and definitely comes with a lot of questions. One of the most pressing ones on your mind might be how you and your spouse's assets will be divided and how debt will be assumed during the divorce process and what, if anything, you will get to keep as yours once the divorce is finalized. 

New York State is Based on Equitable Division of Property

New York State divorce courts divide assets on equitable distribution, meaning the judge will consider multiple factors and decide which spouse should assume which assets based on what is honest and fair. In this situation, fair does not mean slicing the cake in half and each person getting an equal share - it actually means that each spouse will receive assets based on what they put into the marriage and how much they will require to live comfortably or as close as they've been used to living while married. 

Who Decides How Property is Divided in a Divorce?

In most divorce cases that run smoothly, a divorcing couple will agree on how assets will be divided. The court will take a Separation Agreement as an agreed-upon decision and in most cases, will not dispute it. However, suppose you and your spouse are unable to agree on some or all of the assets. In that case, you will need to take the issue either to a mediator to help come to a decision or, hopefully as a last resort, take the issue to court for a judge to decide. 

If the judge has to decide on the property division, it will be much more expensive for you and your spouse, and you may not like the final order created, so mediation is always a suggested plan to pursue first. 

Which Assets Will a Judge Divide For a Divorcing Couple?

In almost all situations, a judge will only divide assets that are considered marital property. Marital property means assets that both you and your spouse have equal claim over. For example, the marital home where both you and your spouse have resided through the marriage is marital property; however, a cottage that may only be in your spouse's name is a little more questionable. 

To help you understand more fully, other property types include property that only belongs to you or your spouse that you may have owned before the marriage or acquired in exceptional cases (such as an inheritance or a gift) during your relationship. This is known as separate property, which is a bit of a grey area.

Some examples of marital property include:

• The marital home
• All personal property acquired during the marriage that has value, such as boats, artwork, etc. 
• Cars or recreational vehicles purchased during the marriage;
• Cottages or second home purchased during the marriage;
• Income made on investments or savings accounts owned before marriage but earned post-wedding (although these can also be argued during court) through contributions made by your spouse as well as you;
• Pensions, RRSPs, and other accounts or investments acquired during marriage;
• Property agreed as marital between you and your spouse in a Separation Agreement.

Some examples of separate property include:

• A savings account or investment property/account owned before marriage;
• Income made on investments and savings accounts that have accrued only if your spouse made no contributions to these accounts;
• A property owned prior to marriage that wasn't the marital home;
• Inheritances;
• Gifts from a third party;
• Personal injury/worker's compensation awards;
• Separate contributions you may have made with your separate property to enhance any real property you may own together. For example, suppose you used your separate bank account with funds owned prior to marriage to build an extension on your home. In that case, this value will be considered your own (when the marital property gets involved, however, many disputes can arise).
• Property agreed as separate between you and your spouse in a Separation Agreement. 

What Happens When My Spouse and I Disagree on Some Property?

A judge will get involved and decide on the division of property that you and your spouse cannot agree on. He or she will use various factors to make these decisions. Still, a lawyer or mediator can usually predict how a situation will go based on prior knowledge and similar cases.

For example, a bank account that was in your name before marriage and had a savings of $20,000 would be considered separate property if it remained in your name and your spouse made no contributions. However, if you decided to put the account in your spouse's name jointly after your marriage, in most cases, a judge will consider the property to be marital property. You will be assumed to have gifted your spouse half of the amount within the account at separation. 

Another example would be in a situation where your spouse owned a small cottage before marriage. During the summer, you both would go up to this property and spend time there. You have prior experience in construction and would spend hours working on the cottage, which was in disrepair. Although the cottage was never put in your name and you never put any of your own money into the property per se, you increased the value of the property exponentially during your marriage by putting your own time and knowledge into the cottage. In most cases, the judge will ensure you get paid the increased value of the property post-divorce. ‍

What Factors Decide How a Judge will Divide the Property Equitably?

According to the NYC Bar, there are several factors that a judge will take into account when deciding how property will be divided. He or she may also decide based on "any other factor" they deem necessary or equitable.  These factors cover each spouse's income and property, number of minor children involved, custodial parrent's residential needs and whether the divorce has caused a spouse to lose financial or insurance rights, and more. 

In conclusion, divorce is a sticky, tricky, and difficult situation for everyone involved. By reviewing the many factors judges will use to decide on your division of property and speaking as amicably as possible with your spouse, mediators, and anyone involved will ensure that you get what is fair and equitable to you when your divorce is finalized. And, having an experienced lawyer on your side in these situations will set you up for an efficient and streamlined divorce.