As a Divorce Attorney on Long Island, certain clients stand out as examples of the stress and misinformation many people have about divorce in Nassau and Suffolk counties
One client that remains at the forefront on my mind is an individual whose first words upon entering my office were this, “My spouse is NOT getting half of my motorcycle.”
This sentiment is near and dear to me, as I am an avid motorcycle enthusiast myself. I asked this individual where he got this idea from, and he calmly stated his wife had been using his beloved motorcycle as a bargaining chip throughout the course of their marriage.
Many clients have that certain item of personal property which they would never be willing to part with, and their spouse is often well aware of what it is and how much it means to them. This provides them with the opportunity for emotional “blackmail” during a Nassau County or Suffolk County Divorce. Fortunately, Section 236(B) of New York’s Domestic Relations Law clearly provides that the State of New York is an equitable distribution jurisdiction, which does not mean that assets are divided straight down the middle.
What is Equitable Distribution in Nassau County, Suffolk County, Long Island?
Equitable distribution is the process through which marital assets and debts are distributed during Long Island divorce proceedings. Rather than simply splitting the debts and assets on an equal (50/50) basis, the Court will take into consideration the totality of the circumstances as they may pertain to each party.
What Property is Subject to Equitable Distribution in New York?
As stated above, equitable distribution is the process by which marital debts and assets are distributed during your Long Island divorce. As it is “Equitable”, not “Equal”, certain property will not be subject to this type distribution scheme. Marital property is defined under Section 236(B)(1)(c) of the Domestic Relations law as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.”
You likely want to know what separate property is. Again, as defined in the Domestic Relations Law, separate property is “(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; and (4) property described as separate property by written agreement of the parties pursuant to [Domestic Relations Law §236(B)(3)].”
Suppose either party purchased real estate or a plot of vacant land prior to the marriage. That house in Florida or vacant land in California remains the sole property of the person who purchased it prior to the marriage and is not “marital property”.
What Factors are considered in Equitable Distribution and How Does it Work?
Nassau County and Suffolk County courts will look at a variety of factors as further set forth in Section 236(B). These factors include, amongst other things:
- the income of each party at the time of the marriage
- the length of the marriage
- whether one spouse is receiving maintenance
- the loss of health insurance benefits upon dissolution of the marriage
Let us tie in the motorcycle example. Say the parties obtain an appraisal on Mr. Smith’s Harley Davidson motorcycle, and it is valued at $13,000. Mr. Smith does not have to sell his motorcycle and give Mrs. Smith $6,500, or one-half of the proceeds of the sale. Rather, Mr. Smith can retain the motorcycle as his sole, exclusive and separate property, and Mrs. Smith will be awarded assets approximately equal in value. Therefore, Mr. Smith retains the beloved motorcycle, and Mrs. Smith retains assets which equal the approximate monetary value of the Harley Davidson.
Are my Spouse and I Bound by New York’s Equitable Distribution Statute?
The simple answer to this question is No. As always, equitable distribution, and entering the court system, is a last resort. Many divorce attorneys on Long Island, including myself, will first attempt to settle a matter amicably, through 4-way settlement conferences and negotiation, rather than immediately requesting a court date. If the parties’ matter is not before a court, they are free to agree upon whatever property distribution settlement they may desire. However, if the parties are unable to reach a fair resolution of their matter, the only way to proceed with a Nassau County or Suffolk County divorce is to utilize the court system, and therefore, equitable distribution.
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