New York Divorce Law FAQ

I am currently on my spouse’s health insurance plan. Can I be removed from my spouse’s health insurance coverage once I file for divorce? 

No. In New York, there are certain automatic orders that require behaviors after the divorce summons has been served. One of these involves a requirement that neither person is allowed to drop the other from an existing health insurance policy. However, once the divorce is finalized, your ex-spouse is no longer required to provide health insurance for you. Under New York law, divorcing spouses must acknowledge they are aware they will no longer be allowed to receive health care coverage under a former spouse’s insurance plan once the divorce is final. There are a few options for keeping your ex-spouse’s health insurance plan after the divorce: 

Consolidated Omnibus Budget Reconciliation Act, or COBRA, allows a spouse who was formerly covered under their ex-spouse’s plan to obtain coverage from the same insurance company. However, COBRA can be expensive since the spouse losing eligibility must pay the full amount of the premiums—with no contributions from her former spouse’s employer.

Settlement Agreement: A couple’s marital settlement agreement or divorce judgment can address the issue of health insurance, providing that one spouse purchase and maintain an individual insurance plan for the other spouse. The agreement or judgment could also state one spouse must contribute a certain amount of money toward the other spouse’s individual plan or COBRA payments. In New York, health insurance payments from one spouse to the other can only extend for as long as the paying spouse is obligated to pay alimony or other award to the receiving spouse.

How are assets divided during a divorce?

To answer how assets are divided during a divorce we need to examine how assets are treated in matrimonial law in the first place. There is a series of questions we can ask that helps clarify marital assets:  

What are considered marital assets or property?  

The property and cash you obtained during the marriage will be presumed to be marital property.  Without an agreement, such as a prenuptial agreement, there is a presumption that property acquired during the marriage is marital property, except for inheritances, personal injury/workers’ compensation awards for pain and suffering, and third-party gifts.

New York courts must divide the marital property “equitably.” That means fairly, considering the circumstances of the case and of the parties involved, but it does not necessarily mean “equally.” There is no statutory requirement of a 50/50 split of marital property.

Once the court determines the “marital pot” or the marital estate, it will begin the process of valuing and then dividing the marital property. The court takes into account 13 specific factors in determining the equitable distribution of property:

  • The income and property of each spouse at the time of the marriage, and at the time of the divorce;
  • The length of the marriage and the age and health of both spouses;
  • If there are minor children involved, the need of the spouse who has custody of the children to live in the marital residence and to use or own its household contents;
  • The loss of inheritance and pension rights of each spouse because of the divorce;
  • The loss of health insurance benefits of each spouse because of the divorce;
  • Any award of support or maintenance the court will be making;
  • Whether one spouse made contributions to marital property that the spouse does not have title to; for example, where one spouse helps the other spouse increase their ability to earn more money by getting a degree or certification;
  • The liquid or non-liquid character of all marital property (“liquid” means that the property can easily be converted to cash);
  • The probable future financial circumstances of each party;
  • The impossibility or difficulty of determining the value of certain assets, like interests in a business, and whether one spouse should be awarded the business so it can be run without interference by the other spouse;
  • The tax consequences to each party;
  • Whether either spouse has wasted or used up any of the marital property while the divorce was ongoing; 
  • Whether either spouse transferred or disposed of marital property at less than market value, knowing that the divorce would be happening.

Even after considering these factors, the court may take into account “any other factor” it finds to be fair in arriving at an equitable distribution of the marital property. Also, certain types of property cannot be divided in kind, such as real property. In that case, the court may make a “distributive award.” A distributive award is a monetary payment by one spouse to the other, either in a lump sum or paid over time to compensate for the property which could not be distributed in kind.

What if the property was acquired before marriage and I put my spouse’s name on the title?

It depends on whether it was real estate property or personal property. With real estate, there is a separate property contribution to the purchase that will normally remain your separate property. You will be able to get your separate property contribution back after the marital house is sold. However, if you put your spouse’s name on your separate personal property, there is now a presumption of a gift of one-half the value of the property, and the entire property becomes marital property.

How is property acquired during the marriage divided if only my spouse is on the title? 

Although your spouse is solely on the title, property acquired during the marriage is still considered marital property and subject to equitable distribution. The exceptions to this rule are: 

  1. Property you obtained by inheritance or gift from someone other than your spouse during the marriage;
  2. Compensation you received for personal injuries during the marriage not related to loss of wages or earning capacity during the marriage.

What is separate property?

When you married your spouse, you may have already owned property or had cash savings or investments. Your spouse also may have entered the marriage with property, cash, and/or investments.  This is called separate property. 

What if separate property is mixed or commingled with marital property?

The court will confirm that your separate property belongs to you and your spouse’s separate property belongs to your spouse. Unless you have mixed or commingled your separate property with marital property or separate property is transmuted into marital property, your separate property remains yours after the divorce, and so does your spouse’s separate property. However, if you mix or commingle your separate property with marital property, the court may consider part or all of your separate property to be marital property and divide it up with your spouse. This rule does not usually apply to real estate, particularly the marital home, where a separate property contribution to the purchase will normally remain your separate property. You will be able to get your separate property contribution back after the marital house is sold.

Will I lose my home during the divorce?

The court can order the home to be sold, for instance to pay for marital debts or to pay back separate property contribution. If one of the parents has custody of the children, the court can delay the sale (usually until after the child has graduated high school). The court can also give the house to one of the spouses. This will be decided by all the factors that affect equitable distribution. 

Will I be forced to leave my house or apartment during the divorce?  

Many couples live together in the same residence during and after their divorce. There are many reasons why divorcing couples continue living together: the expense of setting up other residence is too high, the children are still adjusting to their divorce, the parties need time to work out parenting plan and custody order, or neither party wants to give up occupancy of the marital residence. New York State courts, unlike many others, do not routinely award temporary exclusive occupancy of a residence to one party. In New York, there is no way you can get a spouse out, without showing that there’s danger of physical violence. The hope is that the parties never get to that point. If you do decide to live in the same residence with your soon-to-be ex-spouse, try not to cause or reciprocate any ill will that would turn your coexistence into a battle between the two of you.  

Contact A New York City Divorce Attorney

If you have questions about divorce laws in New York, we are here for you. Reach us online or by telephone at 347-395-4799 to arrange a consultation with a knowledgeable divorce lawyer.

We represent individuals and families around Queens, Brooklyn, Manhattan, and all across New York City.