Dividing Assets in the Divorce

Man sitting with child

All assets the married parties have are not subject to equitable distribution in divorce cases in New York. All assets accumulated prior to the marriage and maintained separately such as 401k plans and pension plans are not subject to equitable distribution in divorce proceedings. Assets accumulated prior to marriage are called “separate property”. In cases where there are 401k assets or pension assets that accumulated prior to the divorce marriage it may be necessary to hire an actuarial firm to determine which portion of the assets are “separate property” and which are “marital property”.

Qualified Domestic Relations Order (QDROs)

Qualified domestic relations orders (QDROS) are submitted to the Supreme Court judge in divorce proceedings. These orders separate the marital assets from the non marital assets.  The non marital assets can be separate property of either of the spouses.  Specialized actuarial companies are usually retained by the attorneys to draft these complicated orders.

Social Security Benefits and Divorces

The issue of Social Security benefits are not specifically mentioned in divorce proceedings. However, survivor Social Security benefits can be a significant source of income for individuals in divorce cases. If the parties were married for a minimum of ten years each individual is entitled to a benefit 50% of the ex-spouses anticipated Social Security payments.

Spouse’s Social Security Benefits

New York father's rights lawyer Elliot Schlissel

Many people feel that they will be receiving the benefits from their own earnings and therefore they are not entitled to a portion of their spouses Social Security benefits.  However, should 50% of your ex-spouses Social Security benefits be greater than your anticipated Social Security Benefits, you’re entitled to the higher of the two.  An example of this is, suppose your Social Security benefits are $500.00 a month and your former spouse’s benefits are $2000.00 per month. Half of those benefits would be $1000.00 per month. You therefore would be entitled to an additional $500.00 a month from your spouse’s Social Security benefits. If you have a situation similar to this, you should not leave this money unclaimed. The government will survive even if you receive your full Social Security benefits!