In a New York divorce or separation, the marital estate is divided equitably. This has two parts: identification of what is in the marital estate and dividing the marital estate equitably, or fairly.
One way to think about a marriage is that it is an economic union, so that everything that is accrued, assets or debts, from the date of the marriage until the start of a divorce action or signing of an agreement, is part of that union. This is where equitable distribution starts: with the identification and valuation of the marital estate.
Once we know the parts of the marital estate, the marital assets and liabilities are divided equitably. Equity is a sense of fairness: and in almost all circumstances fairness means an equal division of the marital assets and liabilities.
There are some exceptions, such as the division of a business, which may not be divided 50/50 and depends on the contributions of the spouses to the increase in value of the business.
One question that’s often asked is whether marital fault or bad behavior affects an equal division. Generally the answer is no, not unless the misdeeds are pretty bad. An affair, poor treatment of each other usually doesn’t affect how assets are divided. Even really bad behavior might not make a huge difference. In one case, a spouse hired a hit man, instructed him to kill the other spouse and throw the body off a specific bridge. The hit man got caught and turned in the spouse that hired him. The divorce judge found this sufficiently bad behavior to affect equitable distribution, so instead of 50/50, the distribution was 60/40.
While the marital assets and liabilities may be divided equally as a general rule, it is essential that they be accurately identified as being either part of the marital estate or separate property, that they be accurately valued and that if one asset is traded off against another, tax consequences and transaction costs are factored in. Reach out to me to discuss your circumstances so that we can discuss your particular circumstances.
