Full question:
Husband drafted separation form with separation of property and child provisions. We have been married for 12 years. He had a affair that I do not believe we can recover our marriage from. He brought a house while we were living together engaged. He has purchased a family property also while we were married. 1st question, do I have rights to any of these properties. 2nd question He has offered a cash settlement of $50,000 and child support of our 11 year old of $600 per month. She goes to private school and I would want to get help with college in the future. If I agree to the amount, if his financial circumstances change can we change agreement? 3rd question, can he go after my pension?
- Category: Divorce
- Subcategory: Property Settlements
- Date:
- State: New York
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
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
