New York High-Asset Divorce Frequently Asked Questions
A. If you are seeking a high-asset divorce in New York, you should know that property is divided on the basis of “equitable distribution”. This does not mean the property is cut in half. The judge considers the needs of each spouse following divorce and also what each person contributed to the marriage. Just because only one person’s name is on the title to property, does not mean they have sole rights to that property. Of course, we are only talking about marital property. Usually, marital property is acquired while the couple are married. But they can also have separate property.
The court will look at factors enumerated in Domestic Relations Law 236(B)(5)(d) including in part
- income and property of each party at the time of marriage
- duration of the marriage
- age and health
- the need of a custodial parent to occupy or own the marital residence and to use or own its household effects
- loss of inheritance and pension rights upon dissolution of the marriage
- loss of health insurance benefits upon dissolution of the marriage
- contribution made to the acquisition of marital property by the party not having title, including contributions as a spouse, parent, wage earner and homemaker and to the career of the other party
- the probable future financial circumstances of each party
- economic desirability of retaining a business intact
- tax consequences to each party;
- wasteful dissipation of assets by either spouse
- transfer made in contemplation of the divorce
- any other factor which the court shall expressly find to be just and proper.
A. Property acquired during the marriage is generally considered to be marital property. Property a person brings into the marriage or inherits is generally considered to be separate property that belongs to the individual as separate property.Q. How will a court in New York determine the value of our property?
A. You and your spouse can agree how to value your property, but property value is often disputed in high-asset divorces. Value for some property is obvious, but assigning value to other property such as businesses and collectibles can take time and expertise. After the divorce is filed, but before the trial date, the judge will set a dates when the parties must value each asset. Each party can hire their own expert appraisers or agree to one neutral appraiser. In the case of a high-asset divorce, it may be necessary to hire various experts such as real estate and art experts.Q. Will property awarded to my spouse have any impact on the alimony I must pay?
A. It’s possible. Alimony is considered separately from property distribution, but if the spouse who is asking alimony is given income-producing property, perhaps commercial real estate or an extensive stock portfolio, the judge can consider this when deciding whether to award alimony, as well as the amount and duration of the alimony. High-asset divorced in New York often involve income-producing property.Q. What effect does my prenuptial or postnuptial agreement have on division of property, alimony, child custody and child support in my divorce?
A. Wealthy couples often have prenuptial or postnuptial agreements. If the couple signed a prenuptial or postnuptial agreement where they agreed on key issues, a New York judge will normally follow the terms of that agreement. However, sometimes a spouse challenges the agreement on various bases such as fraud or coercion. Illegalities and contract discrepancies make it possible for a judge to throw out the contract in some cases.Q. How does a court determine alimony in a New York high-asset divorce?
A. The judge will start with a statutory calculation, but the calculation has a cap on the income of the payer spouse. In a high-asset divorce, the payer’s spouse is likely to exceed that cap. (At the time of this writing, the cap is $178,000, but that is adjusted periodically.) When the payer spouse’s income exceeds the cap, the judge can consider a number of other factors in order to reach a just result. This gives the judge a great deal of discretion.