Status of Property Before and After the Start of a Divorce

Equitable Distribution Before and After a Divorce is Started

In New York State the courts turn to the date of filing of a divorce action as a bright line to determine certain rights and responsibilities. To be clear, the date of filing is the date and time the divorce action was filed with the county clerk's office. This should not be confused with the date a spouse signs the summons and complaint or the date of service of the summons and complaint.

Generally, property acquired after the commencement of a divorce action is the separate property of the acquiring spouse. This is an important factor when determining equitable distribution and division of the assets of the marriage.

However, where property acquired after the commencement of the divorce action can be traced to marital property the courts will treat the newly, post commencement, property as marital property. For example, a bonus received after the commencement of the divorce action will still be considered marital property if earned from pre-commencement employment.

Also, property acquired after the divorce action has been commended may also be treated as marital when some right to the property was acquired during the marriage (pre-commencement). For example, if a spouse contracts to buy a house prior to commencement but the closing occurred after commencement of the divorce action, that home would still be considered marital property subject to equitable distribution. Likewise, if an educational degree was obtained after commencement of a divorce action, the value of the degree could still be subject to equitable distribution if there can be a showing that the other spouse made significant contributions towards the spouse obtaining the degree during the marriage.

The divorce law in New York State and the relevant case law broadly interprets post commencement property as "marital property", therefore, it is important to consult with a New York State divorce lawyer to protect your interests as soon as possible.

In some instances property no longer exists at the time of the commencement of the divorce action. A court cannot distribute property that no longer exists. What a court can do is issue a spouse a credit against some other existing marital asset or issue a money judgment. This prevents a spouse from refusing to account for a disposed of marital asset.

If however, a spouse uses marital assets to pay off a marital debt this will be considered a "wash" by the court however, a spouse cannot pay their sole obligations with the other spouse's money.

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