Calculating Divorce Maintenance
In New York, determining maintenance (spousal support or alimony) can be a burdensome task. This task can become more complicated in situations where one spouse is receiving disability or a long term/permanent personal injury settlement in the form of a tax free annuity. Although the line between separate property and marital property with regard to such payments is often blurred, the fact of the matter is that these payments can have an effect on child support and even maintenance. Disability or annuity income can be factored in for the purposes of calculating how much maintenance a spouse should be paying to the injured party.
More importantly, the disability or annuity income should be used by the disabled spouse for the purpose of taking care of the children. This money should not be discounted when determining who pays carrying costs. It absolutely should be used to contribute to the support of the children.
Divorce Attorneys
If you are contemplating a divorce in which one of the spouses is receiving some type of disability or personal injury settlement payment, call (516) 858-2620 to speak to a divorce attorney today!
Separate Property in Divorce
Not ALL Property is Divided between Spouses in a Divorce: Separate Property Remains with the Spouse.
When a couple divorces, the couple’s marital property is subject to equitable distribution. This means the property is divided between spouses according to certain legal principles. But not all of a spouse’s property is considered “marital property.” Some assets may be considered “separate property.” Separate property is not subject to equitable distribution, and therefore may remain with one spouse after a divorce.
The terms “marital property” and “separate property” are defined by New York’s Domestic Relations Law:
The term “marital property” shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined.
The term separate property shall mean:
(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part.
As a general rule, it appears that property obtained prior to a marriage, or through non-marital sources, remains separate, whereas property that is acquired during the marriage is marital property, subject to equitable distribution. But as with most areas of the law, there are exceptions. If a spouse “co-mingles” property that would otherwise be considered “separate” with “marital property,” it may be deemed marital property subject to equitable distribution. On the other hand, property that is acquired in exchange for “separate property” may be deemed “separate,” even if acquired during the marriage. Property acquired after a separation agreement or divorce proceeding is generally considered separate. Finally, prenuptial or separation agreements in which spouses agree to treat separate property as marital property are generally enforceable.
If you have questions about this or other legal matters, the Law Firm of Vaughn, Weber & Prakope, PLLC would like to assist you. Please call (516) 858-2620 to set up a free consultation with an experienced matrimonial attorney.
Recently our office has received some questions regarding negotiations for either settlement agreements or matrimonial distributions. There seems to be some misconception regarding the rights of custodial parents to receive child support. Child support in New York is governed by the Child Support Standards Act (CSSA). This act sets the amount of child support to be paid based upon the income of both parents and the number of children involved. The custodial parent is entitled to receive the amount determined by the CSSA. There are very few instances when the child support number should be lowered as a negotiating tactic for property distribution. There are several factors to be considered when dividing marital property. Maintenance on the other hand is a much better tool to negotiate with. There is no absolute obligation of maintenance, therefore the risk is less. Coming to an agreement for a number that is less than what both parties expected will yield better results in negotiations. Don’t allow the non-custodial parent to “bully” you into taking less for child support when the number is set by statute. Instead, negotiate maintenance amounts, marital property, separate property or other variables. Keep the child support that you are entitled to because it is surely in the best interest of your children to do so. And realistically speaking, you never know what tomorrow will bring. You may need that money sometime in the future to care for your children. If you have any questions, please feel free to contact our office at (516) 858-2620!
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