What are My Property Rights in Divorce in New York?
Full Question:
Answer:
New York is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. Property acquired before marriage is generally considered separate property unless the other spouse contributed income or improvements to the property. Marital property shall be distributed equitably between the parties after due consideration of the following factors:
1. The income and property of each party;
2. The duration of the marriage and the age and health of the parties;
3. The need of the custodial parent to occupy the marital home;
4. The loss of inheritance and pension rights upon divorce;
5. Any award of alimony;
6. Any contributions to the acquisition of marital property;
7. The liquid or non-liquid character of marital assets;
8. The probable future financial circumstances of the parties;
9. Tax consequences;
10. Any other factor the court deems relevant.
When a divorce decree is issued by a court, that court retains jurisdiction to modify its order. A court may grant a motion for a modification of a divorce decree when the parties consent to the modification or when a significant change of circumstances justifies the modification. Certain aspects of the decree are modifiable, while others are not. The property division is not modifiable by the court. It is final. Child custody may be modified if there is a significant change of circumstances. The court's decision to grant a modification is based on the best interests of the child. A motion and petition are generally the same thing, they are formals requests to the court for something. If granted, the court will issue an order. When the order is made, the requests in the motion/petition become enforceable.
Yes, retirement benefits accrued during marriage are subject to property division in divorce cases in New York. Please see the information at the following links:
http://www.osc.state.ny.us/retire/members/divorce.htm
http://www.divorceinfo.com/nyfaqspropertydivision.htm#RetirementPlans
http://www.brandeslaw.com/retirement_benefits/equitable_distribution_of_pensio.htm
