New York is an ‘Equitable Distribution’ State. Equitable distribution means that property is divided fairly—not necessarily equally— between two divorcing parties. Distribution of marital property depends on several factors, including the age, income, and health of the parties, the duration of the marriage, contributions of each party to the acquisition or enhancement of an asset, and any tax consequences.
Non-marital or Separate Property
Property that a spouse brings into the marriage and keeps in his or her name is considered to be separate property. Inheritances and gifts received by one spouse during the marriage are usually separate property, as well. Therefore, the following are exempt from equitable distribution:
- Property owned prior to the marriage
- Personal injury compensation received during the marriage
- Any asset designated as separate in a written agreement
The non-titled spouse who has contributed to the increase in value of a separate asset may have a claim to an equitable share of that increase.
Marital property is subject to equitable distribution. It includes property and income acquired during the marriage, such as real estate, physical possessions, professional degrees and licenses, and business ventures. Income received from employment during a marriage is marital property, as are the marital home and furniture acquired during the marriage. Pension and other retirement benefits earned during the marriage are also marital property.
Courts are guided by the following in determining each party’s equitable share during property division:
- Length of the marriage
- Age and health of the parties
- Property and income of each party upon marriage and at the commencement of the divorce
- Amount of spousal support
- Probable future financial circumstances
- Any need for the custodial parent to reside in the marital residence
- Practicality of one party retaining an asset, such as interest in a business
- Tax consequences to each party
- Contribution made by the party not having title
- Wasteful dissipation by either spouse
- Any transfer of assets in contemplation of the divorce