A divorce is the legal dissolution of a marriage by a court. To initiate a divorce proceeding, a party to a marriage petitions the Supreme Court of the County where one party resides to obtain a judgment permanently dissolving the legal status existing between the spouses.  The spouse petitioning the Supreme Court for a divorce is identified as the Plaintiff, whereas the non- petitioning spouse is identified as the Defendant.

In October of 2010, the state of New York joined the other forty-nine (49) states to include a No-Fault basis for divorce.

In New York, postnuptial agreements are specifically authorized by Domestic Relations Law § 236(B)(3).

A postnuptial agreement is a contract entered by a husband and wife during their marriage, usually to address such issues as support, ownership, and distributions of property in the event the marriage later ends in divorce.

A postnuptial agreement can also help minimize the time and money expended in legal proceedings should a marriage end in divorce.  Like prenuptial agreements, postnuptial agreements further a public policy in favor of allowing families to resolve issues of support and property division without judicial intervention.

Courts will determine that postnuptial agreements are valid and enforceable, so long as they comply with certain formal and substantive requirements.

In New York, prenuptial agreements are specifically authorized by Domestic Relations Law § 236(B)(3).

A prenuptial agreement (also referred to as an antenuptial or premarital agreement) is a contract between parties entered into prior to their marriage, usually to address such issues as spousal support, ownership, and distributions of property in the event the marriage later ends in divorce.

A prenuptial agreement obtain help minimizes the time and money expended in legal proceedings should a marriage end in divorce, by reducing the amount of judicial intervention needed.  In New York, there is a strong public policy in favor of allowing families to resolve issues of custody, support, and property division without such intervention.

A legal separation is a contract, “whereby a husband and wife live apart from each other while remaining married, either by mutual consent (often in a written agreement) or by judicial decree.” InNew York, separation may last for any period of time.  A separation agreement does not automatically become a divorce after one year.

Domestic Relations Law § 236(B)(5)(c) requires that the court equitably distribute marital property between the parties to a divorce.  Equitable distribution, however, does not necessarily mean equal distribution, and the court must consider the circumstances of the case and of the respective parties when distributing the marital assets.

What is “marital property”?

Marital property is all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.

What is “separate property”?

Separate property is defined as:

(1)        Property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;

(2)        Compensation for personal injuries;

(3)        Property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;

(4)        Property described as separate property by written agreement of the parties pursuant to subdivision three of this part.

While marital property is distributed among the parties to a divorce, separate property remains the property of whichever spouse acquired it.

How do courts determine an equitable distribution of marital property?

In determining an equitable disposition of property, the court shall consider:

(1)        The income and property of each party at the time of marriage, and at the time of the commencement of the action;

(2)        The duration of the marriage and the age and health of both parties;

(3)        The need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

(4)        The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

(5)        The loss of health insurance benefits upon dissolution of the marriage;

(6)        Any award of maintenance under subdivision six of this part;

(7)        Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

(8)        The liquid or non-liquid character of all marital property;

(9)        The probable future financial circumstances of each party;

(10)      The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

(11)      The tax consequences to each party;

(12)      The wasteful dissipation of assets by either spouse;

(13)      Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(14)      Any other factor which the court shall expressly find to be just and proper.