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In New York, the prevailing rule regarding property division in a divorce is equitable distribution. Most states follow this guideline, but some states use community property rules. Equitable distribution means the court fairly divides the assets.

The fair division of assets occurs when the court considers factors about the marriage, the couple and each individual. The idea is to provide a fair distribution based on contributions to the marriage and general ownership rights. The court does honor separate property rights, which is when a person owns something prior to marriage and keeps that property separate throughout the marriage. Each individual gets his or her own personal property, but marital property, which is jointly owned or which the couple secured during the marriage, is fair game for division.

Prior agreement

According to the New York State Senate, if a couple has a prenuptial agreement or they reach a settlement outside of court, then that will take priority over the court dividing the assets.

Considerations

If the court has to divide the assets due to a lack of prior agreement, then it will consider a range of factors in making these decisions. The court considers custody of the couple’s children and their individual incomes. It will also look at things such as whether one party will lose health insurance or an inheritance upon the divorce.

The court will consider how long the couple was together and how each couple contributed to securing the assets. It will also look at any spousal support awarded in the divorce, along with the age and health situation of each party. Lastly, the court will look at tax consequences, dissipation of assets and any other factors it considers important in the matter.