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The Necessity of Asset Division in a Divorce


Having the ability to live comfortably in New York City and its surrounding areas requires a certain level of financial health. It’s a perhaps unfortunate reality that anyone living in a major metropolitan area can understand. It takes a little luck and a lot of work to attain your goal of living in a nice, safe neighborhood with your preferred amenities at your fingertips. Once you’ve accomplished that milestone, you don’t want to risk losing it if your marriage should end.

Divorce can be incredibly stressful and full of unsettling emotions that take over a spouse’s otherwise sound judgment. Making hasty decisions to avoid conflict by agreeing to settlements that are against your own best interest can have devastating and unintended consequences. Taking the time to properly divide your assets, while time consuming, can help preserve the lifestyle that you built and deserve to continue enjoy.

Separate property

Generally speaking, in New York State, any property and assets that you own before getting married still belong to you after you get married, as long as you don’t “co-mingle” those assets. For assets like these, you may eventually have to prove that you did in fact own them before marriage. While you can certainly choose to give up separate property in a divorce settlement – and there may be strategic benefits to doing so in a negotiation – as a general rule you cannot be required to divide your own separate property.

Certain other kinds of property acquired during the marriage may still remain separate property, not subject to distribution. This includes inheritances, awards from workers’ compensation or personal injury claims, and gifts to you from anyone other than your spouse.

Marital property

New York is an equitable distribution state when it comes to division of marital property during divorce. Any and all assets that you and your spouse gained together from the first day of marriage are fair game for property division, with a few highly specific exceptions such as inheritances.

There is no guarantee of an equal split down the middle, and there are numerous factors that play into the property division process such as length of marriage, assets you each owned when you married and at the time of filing, contributions made by a spouse toward property, and even a party’s future financial situation.

There’s a lot to consider when determining the existence and extent of all marital property. Basic marital property that may be subject to division includes:

  • Real property purchased with marital funds
  • Vehicles and home furnishings
  • Cash, securities, bank accounts, retirement accounts and pensions
  • Advanced educational degrees
  • Professional licenses obtained during the marriage
  • Gifts to each other

Certain property must be appraised

Appraisals are needed to determine the true value of the marital estate that will eventually be divided. This can become a complicated process, as the lines between separate and marital property can be blurred by comingled funds or other property transfers. Valuing assets when separate property was partially contributed to acquire marital property is tricky, and requires a certain level of expertise.

Real estate subject to division in a divorce may include homes purchased both before and during a marriage, and any renovations to those homes made during your marriage. While separate property itself may belong only to one spouse, marital funds put into renovations or repairs, and any increased value as a result, can become marital property that needs to be valued and divided. This can be complex when taking a fluctuating real estate market value into account both domestically and abroad.

You may need more than one type of appraiser based upon the property that you need to have valued. Even finding the right real estate appraiser is not always a simple referral. If you own homes or personal property that have unique features, or is in a highly specialized location, then you may need the help of a specialist in those particular areas to ensure the proper value has been assigned to those items.

Examples of personal property that would require professional appraisal include:

  • Antiques and artwork, which will both require more specialized appraisals based on the artist, period, and origin of each piece
  • Specialty furniture and household goods
  • Aircraft, boats, and luxury vehicles
  • Financial accounts
  • Foreign currency
  • Businesses

Determining who will walk away with which asset during a divorce – and what percentage the final split will be – is not a simple process. You need skilled professionals who are able to weigh all factors, then fight for your right to a fair settlement.

Berkman Bottger Newman & Schein LLP is an award winning New York City matrimonial and divorce law firm that understands the importance of preserving your privacy while taking an aggressive yet sensitive approach to your legal needs. Our trusted Manhattan divorce attorneys assist distinguished clients throughout New York City, Westchester, and New Jersey. To reserve your consultation, please call (212) 466-6015 or fill out our contact form today.