Can You Get a Larger Share of Marital Assets in Divorce If You Earn Less Money?

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In divorce, the couple’s marital assets are divided according to the rules of equitable distribution. Equitable does not mean equal. Consequently, in dividing marital assets, courts are supposed to consider fairness and recognize that circumstances may exist that justify giving one party a larger share of the marital assets. For example, unequal distribution can arise when spouses divorce after a long-term marriage and one side argues he or she deserves more of the property for various reasons, including because he or she has less income and has no prospects to increase income. With that said, simply earning less money than your spouse is not enough to receive more than half of the marital property.

What Factors Are Taken Into Account in Equitable Distribution?

In New York, there are 14 factors to be considered in equitable distribution, including the income and property of each party at the time of marriage, and at the time of the commencement of the action; the duration of the marriage and the age and health of both parties; any award of maintenance; the probable future financial circumstances of each party; the loss of inheritance and pension rights and health insurance; the nature of the asset (liquid or nonliquid, passive or active) and other factors.

Notably, equitable distribution only applies to marital property, which is property that is generally acquired after the parties’ wedding date and up to the date upon which a divorce action is filed. Separate property that is either acquired before the parties marry, as a provable gift specifically to one party of the marriage, or through an inheritance during the marriage is not subject to property division in divorce. 

How Does Each Spouse’s Respective Income Factor Into Equitable Distribution?

In determining how to split marital assets, some of the factors that a court may consider are the length of the marriage, the income of each spouse, their likely future income and the finances of each party. In some instances, it may be equitable to award a larger share of the assets depending on the circumstances. For example, the court may weigh factors such as:

  • The likelihood that the higher-earning spouse in a long-term marriage will continue to maintain that income.
  • The employment prospects and likelihood that the lower-earning spouse can maintain or increase his or her income.
  • The age and health of the spouses especially if these are likely to impact a spouse’s earning potential.
  • The lifestyle of the parties during the marriage.
  • The amount of maintenance awarded to the lower-income spouse.

To justify a larger share of the assets, the lesser-earning spouse will have to make a case that under the circumstances, it is just and proper to award him or her more property.

If you are considering divorce, it is important to work with an experienced divorce lawyer to help ensure property is distributed fairly. Contact us to discuss how we can help protect your interests.

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