FAQs on Collaborative: Equitable Distribution and Property Division
Collaborative Divorce has many finer points that clients and students often ask about. These FAQs posts clarify some of these muddier details, giving you the opportunity to accrue as much helpful information as you can. Whether you are considering your divorce options, seeking more knowledge about the process you’ve already chosen, or hoping to learn more about Collaborative Divorce more generally, the FAQs on Collaborative are a straight-forward teaching tool to answer specific questions you might have.
How is property divided up during a New York divorce?
New York law considers your marriage to be a “financial partnership.” Among other things, once you get married, all compensation you receive in exchange for your own efforts is marital. It’s easy to unintentionally create a marital asset from a separate asset when you commingle the two. There are ways to keep finances silo-ed during a marriage — through use of legal tools like a prenuptial agreement — but you might be surprised by the degree to which your and your spouse’s finances have been mixed.
For instance, maybe you make contributions to a 401 (k) retirement plan through your work. The plan is in your name, and only you contribute to it. But the asset belongs to the marriage, which means your spouse may have a claim to some of what’s in it. Whatever divorce process you choose, you will have to work out a way to equitably divide all the marital property, such as retirement accounts, pensions, stocks, homes and real estate holdings, businesses that you own, etc.
What is the difference between “equal” distribution and “equitable” distribution?
In some cases, it is possible to split assets (or debts) right down the middle. But when you’re dealing with sentimental objects or items like jewelry, works of art, cars, and furniture, you often can’t just split them down the middle. Part of the process of getting divorced is finding a way to equitably divide assets and debts. This is one of the areas in which the Collaborative process really shines.
For instance, maybe both of you want the dog. Obviously, you cannot “split” a dog; however, you can negotiate a creative arrangement. For instance, maybe the dog travels with the children or lives primarily with one person but spends two weekends a month with the other. It might even make sense for one person to give up the dog altogether in exchange for something else that is very significant for that person. The opportunity to really think through what each person wants and why is one of the hallmarks of the Collaborative process.