My spouse refuses to adhere to the property division provisions in our prenuptial agreement. What recourse do I have?

It would depend on your individual situation. Pre- and post-nuptial agreements are contracts, subject to breach-of-contract enforcement, and the courts have the ability to review and make decisions related to them.

What happens to a professional practice or family business that just one spouse is running?

While a professional practice or business is subject to fair distribution, there are times when it is not desirable to split up a functioning entity. In these situations, the spouse who is running the entity may be awarded the business or practice and the other spouse would then be awarded another asset or property to satisfy equitable distribution.

What if assets that were once my separate property have been commingled with marital property?

If you have mixed or commingled your separate property with marital property, the courts would decide how it should be divided with your spouse. Depending on the situation, part or all of your separate property may now be considered marital property. If the assets were used for real estate such as the family home, the contribution to the purchase made from separate property will normally remain yours, and you can get this back after the property is sold.

What is a distributive award?

Certain types of property cannot be divided in kind, so the court may make a “distributive award.” This is a monetary payment by one spouse to the other, either in a lump sum or paid out over time, to compensate for the property which could not be divided.

What if one spouse has been a homemaker?

Homemakers often underestimate their economic contribution to the marriage, as well as what their financial needs will be once the marriage has ended. Our attorneys would look for and enumerate all your efforts, expenditures, contributions and services made to the home, family, and spouse’s career, as well as the loss of your own career potential in determining how marital property will be equitably distributed.

What are “active assets”? What are “passive assets”?

An active asset is any marital property that can change in value due to the actions of the owner, such as if a home loses value due to the owner’s neglect. A passive asset is any marital property that changes in value due to forces beyond direct control of its owner, such as a brokerage account that loses value after a stock market crash.

Are active and passive assets valued differently?

Active assets are typically valued as of the date of separation or the commencement date (the date on which a summons or complaint is filed), but passive assets are valued as of the trial date for the divorce. The reason that active assets are valued as of the commencement date or date of separation is to prevent the spouse controlling the asset from allowing the value to decline as the divorce proceedings evolve. Since divorcing spouses have no control of the value of passive assets, they can be fairly valued at the end of the divorce procedure.

What if a spouse hides assets fraudulently?

Sometimes a spouse will transfer property without the other spouse’s knowledge or consent during the marriage and prior to filing for divorce. If this transfer was made for the purpose of hiding the asset in divorce, then the courts can set it aside as a fraudulent conveyance under N. Y. Debt. & Cred. Law §§ Article 10, Section 273-A.

Manhattan Property Division Lawyer | We Fight For You In Property Division

Manhattan Property Division Lawyers

Our property division attorney can help settle property issues in your divorce.

Disagreements about dividing up property in a divorce can cause a case to become hotly contested, but our lawyers can help you keep what is rightfully yours. The division of matrimonial property can be a major source of contention in divorce, as spouses often do not agree on who should be entitled to what assets. New York follows the equitable distribution system, which means that assets and property acquired in the marriage should be divided in a fair and equitable, but not necessarily equal, manner. However, in a marriage of long duration in which there are children, courts tend to try to distribute assets equally.

Determining what is equitable can get complicated, especially in high asset divorce situations where property that needs to be protected may include businesses, investments, real estate, stocks, and retirement accounts. If you are thinking of getting divorced and have assets you are concerned about keeping, you have a lot to lose and need to avoid making costly mistakes. Fortunately, there is help available from the Manhattan divorce attorneys at The Levoritz Law Firm.

Our lawyers understand what you are going through and have the knowledge, experience, and skill to protect your interests and guide you through the equitable distribution of property in your divorce. Delaying can lead to mistakes that only make your situation more difficult to resolve, so call our lawyers today at (718) 942-4004.

Our Property Division Attorney Explains How Property is Divided in a Divorce in New York

IN NEW YORK, THE ONLY ASSETS DIVIDED IN DIVORCE ARE MARITAL PROPERTY.

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Marital property is generally considered to be all property acquired by you and your spouse, individually or jointly, during the period of your marriage, even if the property is titled in the name of one spouse only. The courts do not divide separate property, which is generally property owned before marriage, inherited property, gifts from third parties to one of the parties, and money received from a personal injury or workers’ compensation recovery. Such examples of separate property are usually exempt from equitable distribution. In addition, certain property may be excluded from the marital estate if you and your spouse have done so through a marital agreement, such as a prenuptial or postnuptial agreement.

Common examples of what is considered marital property include:

Your primary home and vacation homes
Vehicles
Household furnishings
Bank and stock accounts
Collectibles
Pensions and retirement plans
Businesses interests
Professional degrees and the “enhanced earning capacity” of any degree, license or certification obtained during the marriage.

CONSIDERATIONS COURTS WILL MAKE FOR EQUITABLE DISTRIBUTION

Since the goal of equitable distribution is for both spouses to be treated fairly, the courts look at certain factors in determining how to distribute property. Considerations include:

The income of each spouse and the property acquired during the marriage until the date the divorce was filed
The length of the marriage
The health and age of each spouse
The need for the custodial parent to live in the matrimonial home and own its effects
The loss of inheritance rights and pension rights upon dissolution
Whether the court has already awarded alimony
Health insurance, pension, their value, and rights to inheritance that both spouses will lose after the divorce
Whether either of the spouses has transferred any matrimonial property after contemplating the divorce, and without fairly considering the other partner
Tax consequences and the future financial circumstances of each spouse
Whether both spouses have equitable claim over the matrimonial property
The liquid or non-liquid character of all marital property
Whether either spouse has committee domestic violence
Other factors that the court deems important, just, and proper that require consideration.

Our Manhattan property division attorneys are aware of all the court’s considerations and will examine your individual situation to determine which factors apply to you. We will do whatever is necessary to minimize tax consequences and fight for your rights to retain separate property and inheritances if your spouse is trying to assert unwarranted claims.

What Happens to Division of Property in a Divorce When Assets Are Comingled or Transmuted?

It is often the case that property becomes owned jointly during a marriage, but how that happens, and whether the property was first owned separately prior to the marriage can add complexity to the division of property with a divorce.

According to Domestic Relations Law ‘ 236(B)(1)(c) “Marital property” means all property acquired spouses during the marriage and before a separation agreement or divorce action has begun, even if the title is in one spouse’s name. As a result, this property is considered as marital property and subject to equitable distribution, unless it can be proven to be separate property.

Separate property is defined as:

property acquired before marriage or acquired by inheritance or gift from a spouse other than the spouse;
compensation for personal injuries;
property acquired in exchange for or the increase in value of separate property, unless the appreciation is due in part to the other spouse; and
property described as separate property by written agreement of the parties.

In general, when divorce is a consideration, it is best to not have a joint account unless it is for convenience of use or access, since it means you are giving a gift of half of the deposit to your spouse.

TRANSMUTATION OF ASSETS

Transmutation of assets happens when property has been transformed from a spouse’s separate property into marital property. This can occur when one spouse owns real property (real estate) prior to marriage and then transfers title of the property into the joint names of both spouses. For example, after you were married, you and your spouse moved into a house you previously owned. You then put your spouse’s name on the title. Once this is done, it is presumed that the spouse who owned the property prior to the marriage made a gift of the separate property to the marital estate, and it becomes marital property. To fight this presumption, you would have to present sufficient evidence that this was not your intention.

COMINGLING OF ASSETS

Comingling occurs when separate property becomes marital property because it is mixed with marital property, such as by depositing funds that are separate property into an account that is held jointly with your spouse. To regain this as separate property, you would have to trace those funds to the initial deposit of your separate monies. This can be a difficult process that may require obtaining and examining financial records and other documents that date back for years.

What Our Manhattan Property Division Attorneys Can do to Help You

Our property division attorneys at The Levoritz Law Firm know the courts, the system, and the tactics opposition attorneys try to use to their clients’ advantage, and we are fully prepared to combat them and ensure your property division is fair and equitable. We can help by:

Examining financial disclosure evidence provided by both spouses, such as pay stubs, income tax returns, and bank statements to ensure information listed in required affidavits is correct
Dealing with the common tax, benefits and retirement issues that normally arise in divorce
Utilizing financial advisors if you need additional help on issues such as the short- and long-term impact of dividing property and analyzing pension and retirement plans
Hiring forensic accountants to determine if your spouse is attempting to hide assets or doing something fraudulent.

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Regardless of the extent of your assets, properties, businesses, and accounts, our attorneys will fight to help protect your interests.

Questions Asked of Our Property Division Attorney

When faced with divorce, it is natural to have questions and concerns. Here are some answers to questions our clients frequently ask about property division:

My spouse refuses to adhere to the property division provisions in our prenuptial agreement. What recourse do I have?

It would depend on your individual situation. Pre- and post-nuptial agreements are contracts, subject to breach-of-contract enforcement, and the courts have the ability to review and make decisions related to them. Our lawyers can review your agreement to make sure it was done correctly and can be enforced by the courts. We can argue on your behalf to ensure your spouse adheres to legally made provisions.
What happens to a professional practice or family business that just one spouse is running?

While a professional practice or business is subject to fair distribution, there are times when it is not desirable to split up a functioning entity. In these situations, the spouse who is running the entity may be awarded the business or practice and the other spouse would then be awarded another asset or property to satisfy equitable distribution.
What if assets that were once my separate property have been commingled with marital property?

If you have mixed or commingled your separate property with marital property, the courts would decide how it should be divided with your spouse. Depending on the situation, part or all of your separate property may now be considered marital property. If the assets were used for real estate such as the family home, the contribution to the purchase made from separate property will normally remain yours, and you can get this back after the property is sold. Our property division attorneys will do everything possible to trace what happened to commingled assets and retain them as separate property.
What is a distributive award?

Certain types of property cannot be divided in kind, so the court may make a “distributive award.” This is a monetary payment by one spouse to the other, either in a lump sum or paid out over time, to compensate for the property which could not be divided.
What if one spouse has been a homemaker?

Homemakers often underestimate their economic contribution to the marriage, as well as what their financial needs will be once the marriage has ended. Our attorneys would look for and enumerate all your efforts, expenditures, contributions and services made to the home, family, and spouse’s career, as well as the loss of your own career potential in determining how marital property will be equitably distributed, and we will fight for your rights accordingly.
What are “active assets”? What are “passive assets”?

An active asset is any marital property that can change in value due to the actions of the owner, such as if a home loses value due to the owner’s neglect. A passive asset is any marital property that changes in value due to forces beyond direct control of its owner, such as a brokerage account that loses value after a stock market crash.
Are active and passive assets valued differently?

Active assets are typically valued as of the date of separation or the commencement date (the date on which a summons or complaint is filed), but passive assets are valued as of the trial date for the divorce. The reason that active assets are valued as of the commencement date or date of separation is to prevent the spouse controlling the asset from allowing the value to decline as the divorce proceedings evolve. Since divorcing spouses have no control of the value of passive assets, they can be fairly valued at the end of the divorce procedure.
What if a spouse hides assets fraudulently?

Sometimes a spouse will transfer property without the other spouse’s knowledge or consent during the marriage and prior to filing for divorce. If this transfer was made for the purpose of hiding the asset in divorce, then the courts can set it aside as a fraudulent conveyance under N. Y. Debt. & Cred. Law §§ Article 10, Section 273-A. A “fraudulent conveyance” is the transfer of an asset out of a someone’s name to keep it from someone else. In a divorce, fraudulent conveyance is a form of economic misconduct and may be considered criminal. In some cases, where there is a wrongful taking of the property, a “constructive trust” may be set up to prevent unjust enrichment by holding funds until the courts settle the issues of ownership.

Our property division attorneys in Manhattan recognize that you may have additional questions and concerns. We are fully prepared to answer them. Call us today at (718) 942-4004 to get started defending your rights and property in a divorce.

Frequently Asked Questions(FAQ)

Call Our New York Property Division Lawyers for Help

WE KNOW THE FIRST STEPS YOU MUST TAKE IN DIVIDING PROPERTY

Identifying, classifying, and valuing the assets and debts of a marriage can be complicated, but we can help. The first step is to identify all assets and debts you and your spouse have, whether or not you think they are separate or marital property and determine what you think is the value of each. Then list those you consider to be separate property. Determine which properties are most important for you to retain and which you would be most willing to give up.

WE KNOW THE IMPORTANCE OF TAX IMPLICATIONS

Tax repercussions of property divisions in a divorce can greatly affect your bottom line, so we will help you consider how receiving each asset and assuming each debt will impact your tax liability. Other considerations for taxes include whether you expect to have to pay or receive child support and/or spousal maintenance.

To ensure legitimate financial disclosure, the law requires that divorcing spouses exchange sworn Statements of Net Worth, accompanied by a current and representative paycheck stub and the most recently filed state and federal income tax returns. If you do not produce this financial disclosure, you may be subject to penalties or sanctions ordered by the court.

CALL US TODAY SO OUR NEW YORK PROPERTY DIVISION LAWYER CAN BEGIN FIGHTING FOR YOU

At The Levoritz Law Firm, you can rely on our tenacious team of lawyers to fight for your interests with dedication and professionalism. While we may be zealous in our approach to the opposition, we treat everyone—no matter what side they are on–ethically, honestly and with respect.

Our clients always come first. We will discuss your legal options with you to discover what the best path is for you in relation to your wishes, goals, and future. When you have questions or concerns about your case, we will be available to address them.

We know that property division and other family law issues can add anxiety to an already stressful time. We will keep you informed at every step in the divorce process to reduce your stress and alleviate confusion.

WHY CHOOSE THE LEVORITZ LAW FIRM

The firm’s founder, Yoni Levoritz, chose his legal team because, like him, they are results-driven. Our family attorneys work hard to achieve settlements with opposing parties, which can reduce the expense, time, stress, and conflict of going to court. However, if a case goes to court because it cannot be settled in our client’s best interest, we will fight tenaciously at trial and on appeal if necessary. To achieve the optimal outcome for our clients, we bring in psychologists, medical experts, accountants, financial advisors, legal colleagues, and other experienced professionals to advise on cases when needed. Our Manhattan family lawyers also put their extensive legal knowledge to work assisting other attorneys as co-counsel.

You can rely on our results-driven firm to be your honest, compassionate, and zealous legal advocate. Call us at (718) 942-4004 today.