Family lawyers often assist couples during divorce proceedings in dividing their assets equitably and fairly, such as determining what assets belong to the couple individually and dealing with situations such as the commingling of separate and marital property.
Most states use either equitable distribution or community property laws when it comes to dividing assets, and most judges do not take fault into account when allocating these assets. For example, infidelity or financial misbehavior usually won’t be taken into consideration by judges when making their decisions.
Marital Property
Most states follow the rule of equitable distribution when it comes to dividing assets and debts in a divorce, meaning a judge will consider several factors when making their determination on what is fair in each circumstance and then allocate assets accordingly.
Typically speaking, any property acquired during marriage by either partner is considered marital property. There may be exceptions; for instance if one spouse obtained an asset prior to marrying without adding their name on it – generally that property would remain separate; but if its value increases through labor or investment from one of their spouses during the marriage then any increase could be treated as marital.
Prenuptial or postnuptial agreements can help couples protect certain assets from being considered marital; additionally, courts can award exclusive use and possession of certain separate properties like the family home to either partner.
Separate Property
As much as it would be ideal, couples are encouraged to come to an agreement on how they wish to divide their property, if this proves impossible a judge will take into consideration various types of assets when making this determination. New York courts typically consider:
Separate property includes gifts given directly to one spouse from non-spouses or others, inheritances, personal injury awards and trusts designated as separate in a prenuptial agreement – providing it contains clear language designating it as such – inheritances from non-spouses or others by non-spouses, inheritances from deceased relatives and trust assets that were designated separate prior to marriage, as well as gifts made directly between partners from relatives other than oneself and those designated separate during prenuptial agreements (and it might result in their incorporation). Failure to distinguish clearly between separate and marital property may cause its eventual incorporation into marital property by way of commingling and alteration by either party in terms of ownership by virtue of confusion, thus altering ownership boundaries between separate property ownership lines by merging.
Once an asset or debt becomes hybrid property, it will be divided equally during divorce proceedings. Passive increases to separate property may also be considered marital property if neither spouse can prove that their contributions contributed directly or indirectly to its appreciation.
Inherited Property
When siblings inherit a home together, they usually hold title as joint tenants or tenants-in-common, meaning that when one passes away, the other co-owners automatically inherit his or her undivided share in the property and can then use, enjoy or sell their portions as desired.
However, if one sibling wishes to remain in their home rather than sell it, they may require all other siblings to pay fair rental value so they can continue living there – this would require filing a partition action.
Keystone Law Group can assist heirs by helping them communicate early on their preferences for administering an estate or trust, to potentially avoid litigation through partition lawsuits. Unfortunately, however, sometimes this cannot happen and in these instances, our experienced legal team at Keystone can offer invaluable help by defending partition actions or negotiating buyout agreements if necessary. For any legal assistance related to your family situation contact Keystone today for help – they have years of experience doing just that!
Debts
Courts use equitable division to divide property and debt between spouses in divorce proceedings. After this determination has been made, they then use this process of allocating assets and debts between both partners using equitable division.
After assigning debts, both spouses should typically receive approximately equal shares. A judge may choose to allocate property differently based on specific case circumstances.
Judges may also assign one spouse an interest in a family business or professional practice, though this practice is less frequent. While such an assignment might make sense when one partner continues practicing law, such an assignment would likely prove more challenging when someone has retired from their career than when still practicing it.
Tort debts are legal obligations incurred due to acts of negligence or intentional harm, with their distribution depending on whether they were intended for the good of society or not.
