Summary of Division of Property in New York

New York is referred to as an “equitable distribution state” (as opposed to being a “community property state” as are some other states). This means that a certain type of property, “marital property,” will be distributed “equitably” among the spouses in a divorce. Other property, called separate property, is not divided between the spouses at the time of a divorce and is generally kept by the spouse who originally owned it. Take note that the word “equitable” does not necessarily mean equal or 50/50. It means that marital property will be divided in a fair or just way under the circumstances.

Marital property includes all property acquired by either spouse during the marriage prior to the commencement of any divorce or separation lawsuit, unless otherwise agreed to by the parties. Marital property also includes earning capacity from an advanced degree earned during marriage and a vested pension. Separate property remains separate. Separate property includes property acquired before the marriage; property acquired by bequest or gift from a non-spouse; compensation for personal injuries; property acquired in exchange or by increase in value of separate property; and property described as separate by written agreement of the parties.

New York courts generally consider at least fourteen separate factors in determining what is “equitable” for purposes of property distribution (as described in section 236.B.5.d of the New York Domestic Relations Law):

• (1) The income and property of each party at the time of marriage, and at the time of commencement of the action;
• (2) The duration of the marriage and the age and health of both parties;
• (3) The need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
• (4) The loss of inheritance and pension rights upon dissolution of the marriage as of the date of the dissolution;
• (5) The loss of health insurance benefits upon dissolution of the marriage;
• (6) Any award of maintenance under DRL section 236.B.6;
• (7) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
• (8) The liquid or non-liquid character of all marital property;
• (9) The probable future financial circumstances of each party;
• (10) The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
• (11) The tax consequences to each party;
• (12) The wasteful dissipation of assets by either spouse;
• (13) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• (14) Any other factor which the court shall expressly find to be just and proper.