When we take on new clients, they almost always want to know what’s going to happen to their property. Their residence, 401k or IRA, stocks and bonds, CDs, vacation and rental properties, and even family businesses are all at stake. They know divorce touches on all these things, but they’re not sure to what extent.
Will they have to split their assets 50/50? What if they’ve been married less than 10 years, will their spouse still get half of their assets? Will one or both spouses be driven to bankruptcy? Will divorce mean they’ll lose everything?
Everyone’s heard the horror stories, so these are valid concerns. The good news is that when spouses work with skilled and knowledgeable legal counsel, divorce does not in any way have to mean financial ruin. A good divorce lawyer can help a spouse protect the bulk of their assets and educate them on how to best protect their credit.
New York is an Equitable Distribution State
When you hear about courts splitting everything 50/50 in divorce cases, those probably occurred in community property states like California and Nevada. New York is not a community property state. Instead, New York follows the “equitable distribution” model, which means marital assets are divided in a fair and just manner, and that does not necessarily mean equal.
Equitable Distribution ‘Unpredictable’
While California’s 50/50 split model is nice and predictable, it can also seem unfair if one spouse earned the lion share of the assets during the marriage. But we’re not in California. Since we follow the equitable distribution model, there is less predictability if your case ends up before a judge. You could walk away with more or less than your spouse.
In a New York divorce, only marital property is subject to division, which is basically all property acquired by both spouses during the marriage, with the exception of gifts and inheritances in one spouse’s name alone. On the other hand, separate property is not subject to division (with some caveats), and it includes all property acquired by one spouse before the marriage.
Related: How to Have an Easier Divorce
Because New York follows the equitable division model and there’s no way to predict how a judge would divide your property, it’s critical to work with a good divorce attorney who can protect your rights during negotiations. This way, the fate of your assets is not left to the whims of a judge who’s far removed.