Divorce in Upstate New York: How are assets and income divided?

Divorce is governed by state law, having a basic understanding can help those going through a divorce protect their interests.

The divorce rate in the United States continues to hover around 50 percent. Those who are considering or recently filed for divorce can benefit from a basic understanding of divorce law. The rules and regulations that impact divorce are created by the state. As a result, the divorce process can unfold differently depending on the state the parties reside.

Divorce and New York state law

New York is an equitable distribution state. The New York State Unified Court System defines equitable distribution as:

The way marital property must be divided by law in a divorce action in New York State. Equitable distribution does not necessarily mean 50 percent of one asset to one party and 50 percent to the other. Distribution is based on various factors presented to the court.

Those who are moving forward with a divorce can choose to either develop an agreement or take the case to court. Cases that go to court will go to trial and a judge will determine how the assets are split between the parties. When making property division determinations, judges take a number of factors into consideration including the age and health of each party, income of each party and, if children are present, the domestic requirements of the parent granted custody. One consideration that does not legally factor into this equation is the cost of alimony or child support.

The parties involved also have the ability to decide how the assets are split, based on individual interest or necessity, and avoid taking the case to court. Judges will often honor the terms in an officiated agreement, but are not required to completely abide by them. However, it is important for all involved to note that the agreement developed between the parties must be officiated by legal counsel in order to have legal standing. This is particularly true if there are any disagreements. Benefits of coming to an agreement outside of court include:

  • Retained control over the process. As noted above, parties can develop an agreement on their own. Negotiating the agreement in this manner allows the parties to retain control over the asset division determination portion of the proceeding, settling as fairly as the parties involve deem appropriate.
  • Consideration of alimony or child support. Although individual parties negotiating the terms of an agreement may take the payment of alimony or child support into consideration, judges in Upstate New York generally do not factor this consideration into their determinations.
  • Decreased cost. It is also important to note that courtroom cases are expensive. Negotiating the agreement can help parties avoid the immense additional cost associated with going to court.

Because of these reasons, it is highly recommended that parties filing for a divorce in New York reach an agreement outside of court. As noted above, legal counsel is needed for these agreements to have legal standing. As a result, it is wise for those who are considering this option to seek the counsel of an experienced divorce attorney. This legal professional will advocate for your rights, working to better ensure your interests are protected.