Articles Posted in distribution of property

Under New York law, property acquired during a marriage is considered marital property, which means that it belongs to both parties. Thus, if a couple divorces, the court will equitably distribute any marital property. In many cases, however, the parties will not only dispute what constitutes a fair division of any marital property but also whether an asset is, in fact, marital property or the separate property of one spouse. In a recent case decided by the Supreme Court, Appellate Division, Third Department, New York, the court explained the process of determining the value of contributions to separate property during divorce. If you and your spouse intend to divorce, it is essential to retain an experienced New York divorce attorney to help you understand how any property may be divided and what steps you can take to protect your interests.

Facts of the Case

The husband and the wife married in 1999 and had four children. In 2013, the wife filed an action for divorce, and the court entered an interim order for child support and maintenance. A trial was subsequently held, after which the court issued a judgment that, in part, awarded the wife a distribution from the appreciation of the marital home, and ordered the husband to pay the wife child support and maintenance until their youngest child reached the age of eighteen. The court also found that the wife owed the husband child support, since he had sole custody of the couple’s oldest child, but stated the payment was in abeyance until the husband paid the wife maintenance that was in arrears. The court also directed the husband to pay the wife’s counsel fees. The husband appealed on several issues.

Marital Versus Separate Property

The first issue the appellate court addressed on appeal was whether the trial court erred in awarding the wife $25,000 for the appreciation of the marital home. The court stated that it is clear under New York law, equitable distribution does not mean equal, and that a trial court has substantial leeway in determining what constitutes a fair division of assets. In the subject case, the court noted that the husband purchased the marital home prior to the marriage, and it was therefore separate property that was not subject to equitable distribution.

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During a divorce, it is essential to keep in mind that the family business is an asset and a source of income. The parties to a divorce are entitled to divide the marital portion of the business as part of the equitable distribution of their marital assets, and the income the business earns will be considered in determining child and spousal support.

How is the value of the family business determined, then? Besides business tax returns, which do not show the full financial picture of the business, it is important to review and analyze all records. Additionally, “lifestyle analysis” is a viable option since business cash transactions are hard or almost impossible to track.

Rudyuk Law Firm, PC works in close collaboration with highly regarded professional business evaluators and forensic accountants to establish and present to the Courts a true value of the business.