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Dividing property in a high-asset New York divorce

Virtually every couple who seeks a divorce will have assets that must be divided between them. For couples with large amounts of assets, the question of how property division works is critically important. Even if a couple wishes to negotiate a property division agreement between them, a knowledge of how New York courts divide property in a divorce can be helpful in resolving the many complex issues in a high-asset divorce.

The first step in the division of property is the disclosure of assets by each spouse. After obtaining an enumeration of the couple's assets, the court will divide the property into two categories: marital property and separate property.

Marital property is any asset that was acquired during the marriage. Separate property is property that was owned individually by one spouse prior to the commencement of the marriage. Separate property also includes gifts and bequests, any increase in value of separate property and property obtained in exchange for one or more items of separate property.

After classifying the couple's assets as marital and separate property, the court will enter an order identifying separate property and a division of marital assets that is "fair and equitable." Separate assets remain the property of the spouse to whom they belonged at the commencement of the marriage.

"Fair and equitable" does not necessarily mean that the division will be equal. The court must take into account 13 factors, including the role of both spouses in acquiring marital property, the ability of each spouse to earn post-divorce income, assets needed to care for any minor children and similar factors. The court may also take into account "any other factor" that bears upon whether the division is fair and equitable.

Anyone contemplating a divorce that involves the division of significant assets may wish to consult an attorney who is experienced in handling high asset divorces. A knowledgeable attorney can provide advice on how the court is likely to categorize assets as either marital or separate and how the court will apply the 13 factors.

Source: NYCBar.org, "Divorce and Property Rights," accessed on May 1, 2017

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