In our last post we began speaking about the issue of property division in the absence of a prenuptial agreement. The fact is, property division will happen no matter whether a couple has an agreement or not, but division will not occur on the couple’s terms if the default rules are applied.
These default rules, as we mentioned last time, fall under the general approach of equitable division and judges are directed to consider a number of factors bearing upon the issue of fairness in the division of assets. Before we delve into these factors, though, it is important to mention that it is only marital property which is ordinary subject to equitable division.
Under state statute, a total of 13 specific factors are listed, as well as a final factor which refers to any other factor the court considers to be “just a proper.” In other words, family law judges have broad discretion when it comes to the factors they can consider in making decisions with respect to equitable division.
The specific factors listed under the state include the following:
- Income and property of each party when they were married and when the divorce action was initiated;
- The length of the marriage;
- The age and health of the parties;
- The custody arrangement and the desirability of the custodial parent remaining in family home;
- Loss of inheritance, pension rights, or health insurance upon dissolution;
- Each parties’ likely future financial situation;
- The liquidity of all marital property;
- The tax consequences of any given division arrangement; and
- The extent to which parties may have dissipated assets in the marriage.
We have not listed all the factors here, but some of the more prominent ones. Again, judges have discretion not only in terms of what factors they consider, but also the weight they give to these factors. Because of this, it is important to work with an experienced attorney to ensure one’s interests are advocated throughout the property division process.
Source: New York Domestic Relations Law, Section 236