Under New York law, once you or your spouse files for divorce your individual incomes are no longer marital property and aren’t subject to division in divorce. However, there are exceptions to this rule. Further, there are situations where you may want to consider giving your spouse a share of your income during divorce for practical reasons.
Income as Separate Property in Divorce
In a divorce, only marital property is divided between the parties. “Marital property” is property acquired from the parties’ wedding date up to the date a divorce action is filed. During marriage, income is considered marital property subject to equitable distribution in divorce.
Income earned after the date a divorce is filed is “separate property” and not divided in divorce. Separate property is property acquired before the parties’ wedding date, after filing for divorce or through inheritance or a gift made directly to a party during the marriage provided it is and remains provably titled solely in that party’s name.
While your post-filing income is separate property, you still have financial obligations to your spouse during the divorce process. For example, you and your spouse are both responsible for expenses related to maintaining marital property, such as mortgage and car loan payments, property and health insurance premiums, and similar costs. In addition, the lesser-earning spouse may be entitled to be paid spousal support.
Practical Considerations in Settlement
Divorce can be a lengthy and contentious process. Sometimes, parties are stuck in negotiations or cannot get past their emotions to move the case forward. If the matter doesn’t progress for a long time, one spouse may file a motion for interim support which would continue if granted until a separation agreement is signed or final judgment is rendered granting the divorce. The recipient spouse, in that event, could likely let the case drag on and remain at a stalemate while being paid spousal support pursuant to a court order.
While neither spouse is entitled to the other’s income once a divorce action is filed per se, if a party obtains an interim support award, there may be reasons to compromise. This is a highly personal and fact-sensitive decision. If you’re in this situation, what is it worth to you to settle more quickly so you can have closure on this part of your life? Giving your spouse more than they deserve may be cheaper than paying attorney fees in an ongoing action and allow you to move forward in your life sooner.
An attorney can assist in weighing the potential cost of continuing to litigate or negotiate with your spouse versus how much you may need to offer to achieve a settlement. However, you have to determine the emotional costs and benefits of your decision.
If you are considering divorce, it is critical to have an attorney who is a strong advocate for your best interests, including advising you of the practicalities of litigating divorce cases. Contact us for a consultation to learn how we can help you achieve a positive outcome in your divorce.
