Equitable Distribution Before and After a Divorce is Started
In New York State the courts turn to the date of filing of a
divorce action as a bright line to determine certain rights and responsibilities. To
be clear, the date of filing is the date and time the divorce action was
filed with the county clerk's office. This should not be confused
with the date a spouse signs the summons and complaint or the date of
service of the summons and complaint.
Generally, property acquired after the commencement of a divorce action
is the separate property of the acquiring spouse. This is an important
factor when determining
equitable distribution and division of the assets of the marriage.
However, where property acquired after the commencement of the divorce
action can be traced to marital property the courts will treat the newly,
post commencement, property as marital property. For example, a bonus
received after the commencement of the divorce action will still be considered
marital property if earned from pre-commencement employment.
Also, property acquired after the divorce action has been commended may
also be treated as marital when some right to the property was acquired
during the marriage (pre-commencement). For example, if a spouse contracts
to buy a house prior to commencement but the closing occurred after commencement
of the divorce action, that home would still be considered marital property
subject to equitable distribution. Likewise, if an educational degree
was obtained after commencement of a divorce action, the value of the
degree could still be subject to equitable distribution if there can be
a showing that the other spouse made significant contributions towards
the spouse obtaining the degree during the marriage.
The divorce law in New York State and the relevant case law broadly interprets
post commencement property as "marital property", therefore,
it is important to consult with a New York State divorce lawyer to protect
your interests as soon as possible.
In some instances property no longer exists at the time of the commencement
of the divorce action. A court cannot distribute property that no longer
exists. What a court can do is issue a spouse a credit against some other
existing marital asset or issue a money judgment. This prevents a spouse
from refusing to account for a disposed of marital asset.
If however, a spouse uses marital assets to pay off a marital debt this
will be considered a "wash" by the court however, a spouse cannot
pay their sole obligations with the other spouse's money.
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If you or a loved one is involved in a divorce action call our divorce
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