New York Divorce Guide

Dividing Marital Property

Q. We have quite a few assets from the marriage, and I’m Child custody strategiesconcerned how much of a ‘hit’ I’m going to take in this divorce? Will my adultery have an impact on the divorce settlement?
First of all, marital misconduct does not play into a court’s decision in most cases concerning a divorce settlement. Secondly, you and the spouse have the opportunity to craft a separation agreement which settles all issues including dividing the assets. If you are unable to agree on an settlement, the court will produce its own divorce settlement that is consistent with New York being an Equitable Distribution state. The judge will return pre-marital assets to their owner, and then divide the balance of the assets equitably, but not necessarily evenly.

Q. My husband wants to offer me a divorce settlement from his retirement accounts (401(k), IRAs, etc) using a QDRO, but I suspect the offer is very low. Is there somewhere I or we can go to get a fair valuation and distribution?
You have two choices. You can have your divorce attorney prepare a proposal (they usually hire an outside, third-party for an evaluation) at significant cost, or you can get your soon-to-be-ex to agree to an accurate but affordable method using The QDRO Desk software.

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Q. I understand New York’s divorce laws have changed. When did they change and how do the changes affect dividing assets and divorce settlements?
NY divorce laws rae subject to change at all times. One such change occurred in October 2010. Gone are fault reasons for divorce, replaced with the sole ground of irretrievable breakdown. Legal opinions on the new laws seem to agree that there are gaps in the new law. An example of a gap would be where one does not want the divorce because property will be sold in a bad housing market (like now) and then divided.Alt Text

Scholars suggest there is no longer a way to stop the divorce with the new statutes. Another murky area is around spousal support. Previously a judge would make decisions on this matter, but now a statute specifically addresses amounts to be paid but misses on particulars on how various factors affect the final amount. For those earning less than $500,000.00, a mathematical formula for temporary support is the lesser of 30 percent of the payor’s income minus 20% of the payee’s income, or 40 percent of the sum of the two incomes minus the payee’s income.

Everyone with incomes below $500,000.00 are subject to the same provisions of the law. Those incomes amounts above the $500,000.00 threshold are included in the equation at the judge’s discretion, who applies more subjective factors.

The new divorce statute mandates for a worksheet to calculate the percentage of income the more affluent spouse will pay to the other. It does not appear to be clear in figuring the percentage of income to be paid, whether the spousal maintenance should be subtracted from gross income first or the child support. Scholars agree that there does not appear to be any guidance as to whether subtractions are to be made from gross income to child support first, off the top, to arrive at the amount of support to the spouse or if is it the other way around.

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If the payor is self-employed or has a cash business, it becomes more difficult to determine real income (easier for portions of the income to be hidden). Another gap seems to be around the temporary award in that the temporary award (before discovery) will tend to not have the entire financial picture and could become permanent without getting the complete picture.

Q. What criteria will the court consider when it must produce a divorce settlement for the parties?

  • The income and property of each at the time of marriage, and again at the time of the filing for divorce
  • The length of the marriage and the age and health of both
  • The custodial parent’s need to occupy residence and its contents
  • Any loss of inheritance and pension rights should the action proceed to divorce; any award of alimony or maintenance
  • The contributions and services of each spouse to the career of the other
  • Liquidity of all marital property
  • The probable future financial circumstances of each
  • Any interest in a business, corporation or profession each may have during the marriage; taxes
  • If either party wastefully dissipated any assets prior to settlement
  • The transfer of any assets ahead of the filing such that it would deny the other a fair share and judicial discretion over any other issue

[Domestic Relations Laws – Article 13 – Section 236]

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