Getting a divorce is never an easy process, and there are many complex issues that a couple will need to address before their marriage can be legally dissolved. Property division can be one of the most difficult aspects of the divorce process. Not only does a couple have to figure out who will get what, but they will also have to determine the value of each asset. This can be a complicated and emotional process, but its goal is to ensure that all marital assets are distributed fairly and equitably. By understanding the different types of property that may need to be considered during a divorce, a person can make sure they will be prepared to make the right decisions.

Different Types of Marital Assets

In New York, a divorcing couple is required to divide all of their marital property, which includes all property they purchased or acquired after the date they became legally married and before they entered into a legal separation or began the divorce process. Property must be divided "equitably," and while an exact 50/50 split is not required, each spouse should receive a fair and just share of the marital estate that will allow them to provide for their needs going forward.

During the divorce process, a couple will need to consider multiple types of property, including:

Even for those who have determined that their marriage is no longer working, the choice to get a divorce is often a difficult one. After a person decides to take action to begin the divorce process, they may not fully realize the procedures they will need to follow, the requirements they will need to meet, and the restrictions that will apply to them. One issue that can sometimes catch spouses by surprise after they file for divorce is the automatic court orders (sometimes known as temporary restraining orders or TROs) that go into effect after filing a divorce petition. By understanding the restrictions that these orders will place on both spouses, a person can be prepared to properly address the financial issues involved in the end of their marriage.

Automatic Orders in New York Divorce Cases

Under New York’s Domestic Relations Law § 236, Part B, Section 2, certain types of automatic orders go into effect after a spouse files a petition for divorce and the petition is served to the other spouse. These orders include:

• A prohibition on selling, transferring, or concealing property - Neither spouse is allowed to dispose of any property they own jointly or separately, including by selling assets, transferring them into the control of other parties, or hiding them from their spouse so that certain items will not be included in the equitable distribution of marital property. Applicable property may include personal belongings, real estate, financial accounts, stocks, or vehicles. Spouses are permitted to conduct transactions that are part of their usual course of business, and they can use the assets they own to pay standard household expenses and attorney’s fees.

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There are many considerations that go into deciding when to get a divorce. For some, even when the marriage has come to an end, divorce may not be an immediate option for various reasons. Couples who do not want to stay together, but are not ready for a divorce, may find the solution is filing for a legal separation.

Why a Legal Separation?

Some of the reasons for avoiding divorce are religious, financial, or social. It may be that a couple’s religion does not allow divorce, or that one spouse needs to stay covered as a spouse under the other’s health insurance policy for a period of time. Other couples may remain married in order to reach a certain number of years of marriage and qualify for benefits. For example, one spouse can qualify for another spouse’s Social Security benefits after they have been married for 10 years.

A legal separation may be the better option for couples in these situations. A legal separation involves more than just one spouse moving out, and the couple living separately.

When a couple gets married, it is common practice for one spouse to take their new spouse’s last name as their own. Traditionally, it was the wife who took her husband’s family name, however, over the past few decades, other options have included the husband taking his wife’s last name as his own or one of the spouse’s hyphenating their maiden name with their spouse’s name. Regardless of which spouse changed their name legally when they wed, the good news is that there is no law that bars them from changing back to their maiden name should the couple divorce.

Changing Back to Your Maiden Name

Once a resolution has been reached on any legal issues the couple may have, the court will issue a divorce decree. Included in this decree is the choice of the spouse who took on the other spouse’s last name to change back to their maiden name without the need to take any other legal steps. The court will include a statement in the divorce decree document that the spouse chooses to now have their name as their legal name once again.

In some cases, however, when the decree is being issued and the spouse has the choice to legally revert back to their maiden name, they may decide not to. They may decide to continue to legally use their married name. There are a number of reasons why a spouse may make this decision, including:

When dividing assets in a divorce, most people think about the division of their current assets, such as money in bank accounts, investments, and real estate property. When they find out that their soon-to-be-ex may be entitled to a share of their retirement benefits, it can derail any future retirement plans they may have had.

Marital Assets

In most cases, the benefits that may fall under “marital assets” are those that were earned during the couple’s marriage. If the couple was only married a short time, the amount may not add up to much, but in situations where the couple was legally married for years, that division can have a significant impact on the amount of retirement benefits the person ends up with once their ex-spouse is awarded their share.

Qualified Domestic Relations Order

In order to ensure that retirement benefits are paid out after a divorce, the spouse who is awarded a portion of the benefits must file a Qualified Domestic Relations Order (QDRO) with the relevant employer or retirement system. This is a court order that requires the employer or retirement system to pay out the benefits to an alternative payee, that is, someone other than the worker or employee.