In New York State, the general rule is that any property or assets acquired by either party during the marriage is subject to "Equitable Distribution" in a divorce proceeding. That means that all marital property and assets, including homes, businesses, vehicles, savings accounts, stock accounts and retirement accounts (to name a few) will be divided between the parties. This rule will apply to debts incurred during the marriage. Finally, where there are minor children of the marriage, child support will be also be awarded to the party who has custody of the children. In all cases, however, parties to a divorce are free to work out any alternate terms as they see fit regardless of the "fairness" or "equitability" of the agreement.
The best way to memorialize the terms of your divorce, including your agreement regarding the division of assets, debt, child custody or any financial support is to have these provisions drafted into a written "Settlement Agreement" or "Stipulation of Settlement." Our experienced attorneys will discuss all relevant issues with you during your divorce consultation and draft a customized Settlement Agreement, addressing all marital issues between you and your spouse, as part of your divorce.
A "Settlement Agreement" or "Stipulation of Settlement" is simply a written agreement or contract, between you and your spouse, drafted by attorneys, which addresses all relevant marital issues. Once you and your spouse execute a Settlement Agreement or Stipulation, the document is incorporated into your divorce paperwork and becomes a legally binding and enforceable contract.
Generally, a Settlement Agreement will not be necessary where there are no children or assets to address, but it is always advisable to have a Settlement Agreement prepared, in any event, simply to ensure that neither party seeks to revisit the terms of the divorce at a later date. Often parties may believe that they have no marital property when, in fact, they overlook such assets as pensions, retirement accounts, and issues related to spousal support.
Certainly. Once you retain our services, we will ask you to forward a copy of your previously executed agreement(s). Your Separation Agreement/Prenuptial Agreement will be incorporated, by reference, into your uncontested divorce and Judgment of Divorce.
All property acquired during the marriage, real property or otherwise, is subject to equitable distribution. That is, regardless of whose name is on the title to the marital home (or the mortgage), both parties are entitled to an equal share of the home's equity. You and your spouse may opt to sell the home and split the proceeds or alternatively, one party may purchase the other's interest in the home. During your divorce consultation, our legal team will discuss your options and assist you in resolving divorce-related issues affecting your home or other real property.
Both parties are entitled to an equal share of the home's equity regardless of whose name is on the title to the marital home (or the mortgage).
Regardless of whose name is on the title to the accounts, provided that these funds were accumulated during the marriage, both parties are entitled to an equal share.
Yes. You and your spouse are each entitled to share in the marital portion of the other's pensions and retirement accounts. However, you may seek to waive your rights to these types of retirement accounts. Either way, please be sure to discuss this with our legal team as the division of retirement accounts require the preparation of a special Court Order called a "Qualified Domestic Relations Order."
A Qualified Domestic Relations Order or "QDRO" is a Court Order prepared by an attorney or pension analyst in connection with a divorce proceeding which will allow for the division and distribution of a pension plan or other retirement account without incurring any tax liabilities typically associated with distributions from retirement accounts. QDROs are intricate documents, which require the pre-approval of the plan administrators and signature of the Judge presiding over your divorce. QDROs need not be submitted simultaneously with a divorce proceeding and, in fact, may submitted after the divorce has been finalized. If you intend to divide any pensions or retirement accounts as part of your divorce, be sure to discuss this with our legal team.
Yes, we can address any types of assets including real estate, 401(k)s, pensions, and other financial accounts. Please note that while we do provide for the division of retirement accounts in your Settlement Agreement, our services do not include the preparation of Qualified Domestic Relations Orders (QDROs). A QDRO is typically required in order to affect a penalty-free transfer of funds from one spouse's pension or retirement account to an account belonging to the other spouse. However, we do work closely with several pension preparation services to which we will refer you, if needed, upon review of your file.
Much as equitable distribution applied to assets acquired during the marriage, credit card debts, bank loans and the like, which were accumulated during the marriage are generally subject to division. That means that even if your spouse incurred the marital debt under his or her name, you may both be responsible for any outstanding accounts. In most cases, however, the division of debt will be prorated based on the relative incomes or earning capacities of the parties. As always, in an uncontested divorce proceeding, you and your spouse have the luxury of dividing the debt in any way you see fair.