When faced with divorce, there is likely a lot on your mind. You might be grieving the loss of your marriage, concerned about starting over, and thinking about child custody issues. One of the most important questions you might have is, “what will happen to everything we worked so hard to build?” Asset division is a complex — and crucial — aspect of your divorce proceedings. It’s crucial to understand how assets are divided during a divorce to help ensure you receive your rightful share of the marital property.

What Items are Considered Assets in a Divorce?

Any property that was acquired during the course of the marriage is considered a marital asset — and subject to division in divorce. While most people think of big-ticket items such as the marital home and vehicles when it comes to the assets divided during a divorce, many other items with value are often overlooked. Significantly, marital assets that must be addressed during divorce proceedings can also include the following:

• Retirement accounts, such as IRAs and pensions
• Financial assets such as stocks, bonds, mutual funds, and cash
• Debt repayments
• Tax refunds and credits
• Copyrights and trademarks
• Credit cards and related benefits, such as airline miles or redeemable points
• Timeshares
• Movable vehicles, such as boats and RVs
• Regular household items as well as pieces of artwork and antiques
• Life insurance policies
• Businesses

It’s best to write down a detailed, itemized list of any assets you and your spouse share so you know exactly what assets are on the table during negotiations. While the value of some assets is easily determined, others may need to be appraised to ascertain how much they are worth. Notably, any assets you owned before you were married are typically considered separate property. Separate assets are not affected by divorce proceedings unless they were commingled with marital assets.

What Factors Affect How Assets are Divided During a Divorce?

New York follows the doctrine of equitable distribution when dividing assets in a divorce. This doesn’t necessarily mean that marital assets will be divided equally. Rather, a judge would consider a variety of factors and distribute the assets between spouses in a way they deem fair.

Some of the statutory factors a judge would consider when making a determination concerning property division include the following:

• The income and property of each spouse
• The duration of the marriage
• The current age and state of health of each spouse
• Whether the custodial parent requires the house for the children
• The amount of spousal support awarded
• The level of liquidity of certain assets
• The assumed financial future of each spouse
• Whether one spouse dissipated marital assets

Some assets cannot be physically divided. In such cases, the court may require one spouse to make monetary payments to the other as compensation.

How Does a Prenup Impact Asset Division?

If you and your spouse signed a prenuptial agreement prior to marriage – or entered into a postnup during your marriage – it may play a major role in how your assets are distributed upon divorce. Assuming the contract is valid and enforceable, a prenuptial agreement can protect the assets you had before you were married or entitle you to specific marital assets in the event of divorce.

However, there are certain situations in which the court may overturn a prenup or postnup. For example, if the language is ambiguous, the agreement is unconscionable, or one spouse entered into the contract under duress, the prenup or postnup may be deemed invalid. A judge might also render a prenup or postnup unenforceable if a spouse intentionally concealed assets, or full financial disclosure was not made.

Can You Negotiate Asset Division Outside of Court?

A court doesn’t always need to decide how assets are divided during divorce. Spouses can decide between themselves how they want to divide their marital property and enter into a settlement agreement without seeking judicial intervention. Mediation and the collaborative divorce process are two alternative dispute resolution methods that can be used to help spouses reach an agreement amicably, cost-effectively, and efficiently. Both methods emphasize communication and finding creative solutions while allowing the parties to remain in control of the outcome of their case.

Once spouses reach a settlement that is mutually satisfactory, the agreement must be formalized in a writing and submitted to the court for approval. After it is signed by a judge, it will be incorporated into the final divorce decree and the terms will be legally binding on both parties.

Contact an Experienced New York Divorce Attorney

If you have questions about how assets are divided during a divorce, it’s best to consult with a knowledgeable divorce attorney who can advise you regarding your specific circumstances. At Duke Law Firm, P.C., we provide our clients with compassionate counsel and reliable representation for a wide variety of divorce and family law matters, including property division.

Offering personalized time and attention in every case, we work closely with each of our clients to create a tailored strategy that will achieve the best possible results. We welcome you to contact us today to schedule a consultation to learn how we can help.