what factors determine settlement in ny divorce cases

Some of these factors may include:

• the age and health of each spouse
• how long the marriage lasted
• the income and property each spouse brought into the marriage
• whether alimony will be awarded
• financial requirements for the custodial parent if children are involved
• what the possible future needs of each spouse will be following the divorce
• if a spouse wasted marital assets during the marriage

Full Answer

How is a divorce settlement negotiated?

When negotiating your divorce settlement the outcome is based on many factors. The courts will take into consideration standard of living and the long-term needs of a spouse if you, the one going through the divorce demands your divorce attorney fight for what is “fair.”

How does a divorce settlement agreement affect child support payments?

A divorce settlement agreement will also take the above into consideration and adjust the child support payments to be fair to both spouses. If one spouse depended financially on the other, alimony may be awarded. Courts look into different factors to see whether alimony should be awarded. These include:

How is marital property divided in a New York divorce?

New York is an equitable distribution state, meaning that the marital property will be divided between spouses in a way that is equitable, or fair. The court decides what’s fair based on a set of factors that show what each of you contributed to the marriage and what each spouse will need to move forward after divorce.

What are the divorce laws in New York State?

Divorce Laws in New York 1 Divorce Laws in New York: What You Need to Know. In New York, a marriage can end through an annulment, legal separation or a divorce. ... 2 Property Issues. New York is an equitable division state. ... 3 Spousal Maintenance and Child Support. ... 4 Custody and Visitation. ... 5 Process. ... 6 Other Issues. ...

How are divorce settlements decided?

A court will take into account how long you were married or in a civil partnership for and whether there are any children. The longer the marriage, the more likely the court will want to divide the matrimonial property equally.

How is money divided in a divorce in New York?

New York is now an equitable distribution state. When a spouse files for divorce, the court must divide marital property equitably or fairly. But equitable doesn't necessarily require an equal split of the couple's assets.

How do courts decide financial settlement?

When making a financial settlement order, the court must consider not only each parties' current income, assets, and financial resources but their future earning capacity. The significance and weight given to income and earning capacity may vary depending on age and circumstances.

What is a spouse entitled to in a divorce in New York?

New York is an equitable distribution state. This means, during a divorce in NY, property division is handled in a way deemed “most fair” to both sides. This is not the same as a community property state, which divides marital property split 50/50 between spouses.

Is NY A 50/50 property state?

New York is not community property or a “50/50” state. New York is an equitable distribution state for property and debt. Under NY divorce law for property distribution, the court will decide how to divide property and marital debt using the state's equitable distribution laws.

How much is alimony in NY?

For marriages from 0 to 15 years, it is 15-30% of the duration of the marriage. If you've got a 10-year marriage, it would be 1.5 to 3 years of maintenance. If you have a 15-20-year marriage, it is 30-40% of the duration of the marriage. And more than 20 years, it is 35-50% of the duration of the marriage.

What a woman should ask for in a divorce settlement?

What Should I Ask for in a Divorce Settlement?Your Marital Home. Think about what you want from your marital home. ... A Fair Share of Assets. ... Retirement and Investment Accounts. ... Fair Debt Division. ... Parenting Time. ... Child Support and Alimony. ... Your Child's Future Needs. ... Take the First Step with Coumanis & York.

Who decides financial settlement in divorce?

The judge will decide what valuations and other evidence must be provided and what questions must be answered by each party in respect of the divorce financial settlement. Many judges are keen to see whether a resolution meeting (see 8 below) can take place at this stage. If not, a date is set for the FDR meeting.

What comes first divorce or financial settlement?

Often, the financial settlement can be negotiated over the same period as the divorce proceedings and is then confirmed by a consent order. Even where this is not the case, it is normally possible to reach a financial settlement in a matter of months rather than years.

Is spouse entitled to 401k in divorce in NY?

Pensions, 401(k) accounts and other retirement benefits earned during the marriage are marital property and can be divided between the spouses at divorce. However, any money put into a 401(k) before the marriage, or after the separation, is separate property and stays with the spouse who earned it.

Does it matter who files for divorce first in NY?

It generally does not matter who files first in a New York divorce case. The filing spouse does not get an advantage to "set the rules" of the divorce. New York courts apply principles that do not favor one party over the other.

What should you not forget in a divorce agreement?

5 Things To Make Sure Are Included In Your Divorce SettlementA detailed parenting-time schedule—including holidays! ... Specifics about support. ... Life insurance. ... Retirement accounts and how they will be divided. ... A plan for the sale of the house.

Are separate bank accounts marital property NY?

Separate Property. Liquid assets in bank accounts are treated like all other property in the marriage under equitable distribution laws. However, only marital property can be distributed in this manner; separate property remains with the individual to whom it belongs.

Do you have to be separated for a year to get a divorce in NY?

You can seek a no-fault divorce in New York if you and your spouse have been separated for at least one year or if there's been an "irretrievable breakdown of the marriage" for at least six months. Couples can also seek a divorce after entering into a separation agreement and living apart for at least one year.

Does infidelity affect divorce in NY?

Although adultery constitutes a crime "on the books", it is generally not prosecuted in New York State. However, being the victim of an adulterous spouse can put you at an advantage in divorce court as it can have financial ramifications on both spousal support and the equitable distribution of assets and debts.

What happens when you divorce and you own a home together?

Upon divorce, you are on your own. In a scenario where the property is registered in the joint names of a married couple and both are also co-borrowers, the court will decide the contribution made by each party and divide the asset accordingly. Both parties would be responsible to pay the loan, though.

What Is Included in a Divorce Settlement?

A divorce settlement agreement is a document where divorcing couples agree on what the terms of a divorce should look like. The agreement may cover several issues, including:

How to negotiate a divorce settlement?

The following tips can be useful when you are negotiating a divorce settlement: 1. Consider Mediation. Mediation can save you thousands of dollars in attorney's fees and court fees. The mediation process will involve a neutral third-party mediator (usually a family law attorney).

What do you need to know before you divide your assets?

Before your assets can be divided, you have to determine whether a given property is marital property or separate property.

How is property divided?

States usually follow one of two ways to divide the property: 50/50 (community property states) or through equitable distribution.

What are the legal issues involved in a divorce?

There are a lot of complicated legal issues that come with a divorce. Drafting a divorce settlement that covers custody, child support, property division, and the like can be a very demanding task, especially if you and your spouse are not in agreement. Speaking to a divorce attorney may be a great place to start to get proper guidance.

What is equitable distribution?

Equitable distribution means the judge will look at each case and determine what is fair. The judge considers a number of things are before reaching a decision. These include: Earning capacity of the spouses. Financial resources and income potential of the spouses. Length of marriage.

How to get divorced?

2. Get All the Financial Information. If you or your spouse are considering a divorce, make sure to gather all your financial information before starting a settlement discussion. Make copies of financial documents like bank accounts, mortgage payments, and retirement plans for future use. 3.

What Is a Divorce Settlement?

This involves negotiating the distribution of property and debts, living arrangements of children, alimony, and other key matters. When an agreement has been reached for all issues, whether through collaborative or contested means, it is written into a document known as a divorce settlement agreement. Also referred to as a “divorce decree,” this document memorializes all terms of a couple’s divorce and carries the enforceability of law.

Is divorce taxing?

Divorce can be an incredibly taxing experience. In order to protect your assets, it is imperative you retain a qualified and experienced lawyer to represent your interests and protect your rights. At Hedayati Law Group P.C., our team of knowledgeable attorneys are ready to help you pursue the most amicable and fair solution to your marital separation.

Why do you have to disclose assets in a divorce in New York?

In New York, each spouse must disclose to the other the amount and type of assets they have so that there can be an equitable division of those assets as part of the final divorce decree. Accurate and complete disclosures are essential to making sure there is a fair division of assets.

What factors are considered when determining the distribution of assets in a divorce?

Some of these factors may include: the age and health of each spouse. how long the marriage lasted. the income and property each spouse brought into the marriage. whether alimony will be awarded.

What are the future needs of each spouse?

what the possible future needs of each spouse will be following the divorce. if a spouse wasted marital assets during the marriage. if a spouse hid or encumbered assets knowing a divorce was about to happen. the liquidity of the marital property. pension, health insurance and inheritance rights.

Why is bifurcation not allowed in New York?

Part of the reason bifurcation is frowned upon is that it can result in two trials instead of one and it also removes any sense of urgency in resolving economic issues because incentives for settlements are removed. Couples must consider that they will have to pay court costs and attorneys’ fees for two trials instead of one when considering a bifurcation action.

What is the first thing a spouse must do when a domestic violence victim is living in a home?

This means the first thing a spouse must do is leave the residence where the abuser is living and if the threat is imminent, call the police.

How long does spousal maintenance last?

For marriages lasting 15 to 20 years, maintenance will last 30% to 40% of the length of the marriage. For marriages lasting more than 20 years, maintenance will last 35% to 50% of the length of the marriage. Courts can adjust spousal maintenance based on a number of factors. Some of those include:

How does a marriage end in New York?

In New York, a marriage can end through an annulment, legal separation or a divorce. New York has been a no-fault state since 2010, meaning that a couple only need cite that a marriage is irretrievably broken to end a marriage.

How many divorces go to trial in New York?

Very few divorces actually go to trial. This is especially true now that there is no fault divorces in New York. Less than 5% of divorces go to trial. However, many divorces will settle on the first day of trial.

How long has it been since New York divorced?

Number 2: No Fault Divorce. It has now been 10 years, since New York adopted “no fault” divorce. This means that you no longer have to state a reason for your divorce (what is called “grounds” in legal terms). The only requirement is that you simply state that the marriage has irretrievably broken down for six months or more.

What is a divorce agreement?

The Agreement is a contract between you and your spouse and it will set forth all the terms and conditions of your divorce. This will include: dividing the marital assets, responsibility for debts, child custody, child support, parenting time, maintenance, as well as many other items.

What does a collaborative divorce mean?

If the mediation is successful, then the parties can get an uncontested divorce. A collaborative divorce means that you and your spouse agree to get a divorce.

What are the issues in divorce?

Most divorces have to resolve the following issues: (i) Child Custody; (ii) Child Support; (iii) Assets; (iv) Debts; (iv) Spousal Maintenance (a.k.a. alimony); and (v) the emotional impact. Clearly, if there are no children involved or if they are over the age of 21 years of age, ...

What is the number 5 of alimony?

Number 5: Maintenance (alimony) Spousal Maintenance (formerly known as alimony). The purpose of spousal maintenance is to give a spouse, after the divorce, economic independence. Maintenance should continue only so long as it is necessary to allow that spouse to become self-supporting.

What happens when an attorney meets with a judge?

Your attorney will advocate for you and give an overview of the important issues involved in your divorce to the Judge. Your spouse’s attorney will also get to speak to the Judge.

How is spousal maintenance determined in New York?

Spousal Maintenance in New York is Determined by Applying and Evaluating the Following Factors: (g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment.

What is the number to contact for spousal maintenance in New York?

If you have questions about what factors determine spousal maintenance in New York, or are considering a divorce, contact Sabra Law Group at (646) 472-7971 to assist you with all of your family law matters. Comments are closed.

What is spousal support in New York?

In New York, these terms are used interchangeably and refer to a payment that is made by one spouse to the other during or after divorce.

What to consider when considering a divorce settlement?

There are many factors to consider, including assets, incomes, living expenses, inflation, alimony, child support, taxes, retirement plans, investments, medical expenses and health insurance costs, and child-related expenses such as education.

What to do if you suspect your spouse is planning a divorce?

If you suspect your spouse is planning a divorce, get as much information as you can now. Make copies of important financial records such as account statements (eg., savings, brokerage, and retirement) and all other data that relates to your marital lifestyle (eg., checking accounts, charge card statements, tax returns).

How to minimize taxes after divorce?

Work together with a divorce financial planner or tax accountant to minimize the total taxes you and your spouse will pay during separation and after divorce; you can share the money you save. Don't forget that both spouses are liable for taxes due as a result of audits on joint returns, so it's usually in your best interest to work together and minimize possible liabilities. If you're facing complicated tax issues in your divorce, it's best to consult with an experienced family law attorney and an accountant.

What is the biggest mistake a divorced spouse can make?

The biggest mistake divorcing spouses can make is being in the dark about finances. If your spouse has always handled all of the financial decisions in your household and you don't have any information about you and your spouse's income and assets, your spouse will have an unfair advantage over you when it comes time to settle the financial issues in your divorce.

How does mediation help in divorce?

The mediation process involves a neutral third-party mediator (an experienced family law attorney trained in mediation) that meets with the divorcing couple and helps them reach an agreement on the issues in their divorce. Mediation is completely voluntary; the mediator will not act as a judge, or insist on any particular outcome or agreement.

How to know if you are getting a fair deal after divorce?

Sounds good, right? The only way to know if you're getting a fair deal is to determine the value of the investments on an after-tax basis, then decide if you like the deal. Again, you should speak with a tax professional about the impact of any proposed property division before you agree to it.

What is the difference between mediation and adversarial legal process?

Mediation also provides divorcing couples a lot of flexibility, in terms of making their own decisions about what works best for their family, compared with the traditional adversarial legal process, which involves a court trial where a judge makes all the decisions.

What is the property divided in divorce?

The types of property commonly divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, benefits and debts. The court treats debts the same as any other real, personal, or intangible property.

What factors determine the fair distribution of marital property?

Factors the court uses to determine a fair distribution of marital property include: each spouse's income and property at the time of the marriage and at the time of the divorce. each spouse's age, health, income, potential earnings or future financial circumstances and property.

What is marital property in New York?

Generally, marital property is all property acquired or earned during the marriage, regardless of what the title says. (N.Y. Dom. Rel. § 236 (B) (c).)

What is a QDRO in a divorce?

In most cases, the court will require a Qualified Domestic Relations Order (QDRO) which is a complex document that details the requirements for dividing the accounts.

What happens if you don't settle your property disputes?

If you and your spouse can't resolve your property disputes on your own, then you may end up in court, asking a judge to decide for you. Throughout the divorce process, you will have opportunities to decide with your spouse how you want to split your property between yourselves.

What happens if you exchange your separate property for a new one?

If you exchange your separate property for new property during the marriage, then that new property remains yours alone. There are circumstances, however, when the court categorizes an increase in the value of your separate property as marital property.

Can a divorce judge divide property?

At divorce, the court divides only the marital property. It can't award any property that was yours alone before or during marriage to your spouse. It can, however, consider all your financial resources—both your share of the marital property and your separate property—when deciding how much spousal maintenance (alimony) to award, if any.

Why did Mark's standard of living decrease after a divorce?

Mark's standard of living will decrease once there is a divorce due to the fact that he makes less than Joan. The two went to mediation and Joan chose to pay temporary spousal support that is deductible at tax time rather than splitting assets in John’s favor.

Why was the marital assets split 60/40?

The marital assets were split 60/40 in Lance’s favor because the judge felt that Lance, being the lower income earner and caretaker of their children should continue to live the standard of living he and his children had become accustomed to.

How long does Joan have to pay spousal support?

Divorce Settlement: The marital assets are split 50/50 and Joan is ordered to pay Mark rehabilitative spousal support for a term of five years. The long-term marriage established a lifestyle that both Mark and Joan had become accustomed to.

What does equal mean in divorce?

When negotiating a divorce settlement it's imperative that you understand that "equal" doesn't mean a 50/50 split. Equal means what is fair to both parties involved. You won't get everything you believe you are entitled to and, you will need to be able to compromise for the sake of all involved.

Can a divorce be split 50/50?

That is not the case in this divorce scenario. It only makes sense that assets be split 50/50 and both spouses move on and rebuild their lives.

Will you come to a fair resolution at the end of your marriage?

In the hope of helping those who are in the dark about what is and isn’t fair, here is a collection of examples of different scenarios and what we believe to be fair divorce settlements .

How to calculate net worth in divorce?

To calculate net worth, you take the total assets and subtract all the expenses and other liabilities.

How many factors are considered in determining the amount of maintenance a spouse should pay?

In making a decision on the amount of maintenance and how long one spouse should pay such maintenance, the court will consider 20 factors:

What happens if one spouse spends away the marital estate?

Wasteful dissipation of marital property by either spouse — if one spouse wastefully spends away the marital estate, the court can take this into account in deciding whether to award an amount to the other spouse to make up for the value wasted.

What is equitable distribution of marital property?

Equitable distribution of marital property — depending on what each spouse received in the court’s distribution of marital property, the court may order maintenance to account for the value of the property. For example, if one spouse receives a large asset, like the marital home, the court may order that spouse to pay an amount to the other spouse to make up for the difference

What happens if one spouse sells assets before divorce?

Transfer or encumbrance made in contemplation of a matrimonial action without fair consideration — if one spouse sells off or transfers assets just prior to the divorce, the court will treat the sales or transfers in the same manner as it would a wasteful dissipation.

What is maintenance in divorce?

Spousal Support. ) The purpose of a maintenance award is to help the receiving spouse become financially independent after a divorce. Maintenance ends on the death of either party; the remarriage of the receiving party; a date specified in an agreement between the parties;

What happens if a couple lives together before divorce?

Existence and duration of a pre-marital cohabitation or a pre-divorce separate habitation — if the couple lived together before marrying, or separated prior to divorce, it might impact how a court views the length of the marriage.

Divorce Laws in New York: What You Need to Know

Property Issues

Spousal Maintenance and Child Support

• Spousal Maintenance in New York
  Laws changed in 2015 that created a presumptive formula to determine how much spousal maintenance one spouse should pay another. These amounts and time periods are presumed to be correct unless evidence can be presented to show why those variables should be changed. T…
• Child Support in New York
  There are several factors that impact how child support is determined in New York. Specific child support guidelines in state statutes are used to determine exact amounts, unless there are reasons to support that the amount would be unjust or inappropriate. Those reasons may includ…

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Custody and Visitation

Process

Other Issues