Equitable Distribution in New York State: How Property is Divided in Divorce
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When a couple divorces in New York State, how the parties’ property will be divided must be agreed upon between the spouses or determined by the court. The process of determining how to fairly divide property between two spouses is referred to as equitable distribution. This does not mean that property is divided 50/50 between each party, but rather, the court considers what each party contributed to the marriage and what each person’s needs are in order to fairly distribute marital property.
Before the enactment of equitable distribution, New York was a “common law property” state, meaning that in a divorce, property and assets were distributed according to which title they were held in. Thus, if only one spouse’s name was on property, that spouse would receive it. Now marital property, which includes all property acquired by either spouse during the marriage, is subject to equitable distribution. This means that it will be divided as a judge sees fit in the event of a divorce.
Marital property includes, but is not limited to, each party’s income throughout the duration of the marriage, retirement benefits earned during the marriage, property purchased by the couple, etc. Separate property, which is not subject to equitable distribution, includes property acquired by either spouse before the marriage, compensation for personal injuries, and inheritance received by either party.
When determining how to divide property equitably, judges consider the following factors:
• Income and property of each party when they got married and when they filed for divorce
• Length of the marriage and age and health of each spouse
• Whether or not a custodial parent needs to occupy the marital residence
• Whether pension, health insurance, and inheritance rights for either party will be lost as a result of the divorce
• Whether spousal support/maintenance has been awarded
• Whether either spouse has a claim to marital property to which they do not have title to, through a contribution of labor, money, effort, etc. (such as, if one party worked to fund the other’s education)
• The liquid or non-liquid character of marital property
• Probable future financial state of each party
• If the property includes an interest in a business, corporation, or profession, what the value of that interest is and whether it would be desirable for that interest to remain free from interference from the other spouse
• Tax consequences for each party
• Whether either party wastefully dissolved marital assets
• Any transfer below fair market value made in contemplation of a divorce
• Any other factor the court deems relevant
While the court does not have to explore each of these factors, and aspects they may examine are not limited to these, this list provides general guidelines for how courts determine how to divide property between spouses in a divorce. Ultimately, equitable distribution aims to distribute marital property in a fair manner, in order to ensure that a just outcome is reached for each party in a divorce.
ABOUT THE AUTHOR: Brian D. Perskin
Brian D. Perskin developed one of the largest divorce and family law practices in the New York City area, Brian D. Perskin & Associates, P.C. He represents individuals in complex family and matrimonial law cases and has written on topics including divorce strategy, fathers’ rights, custody rights of non-parents, pension fund assets and attorneys’ fees. He earned a BA in economics from Brandeis University in 1987 and a JD from Washington College of Law in 1990.
Copyright Brian D. Perskin & Associates
More information about Brian D. Perskin & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Marital property includes, but is not limited to, each party’s income throughout the duration of the marriage, retirement benefits earned during the marriage, property purchased by the couple, etc. Separate property, which is not subject to equitable distribution, includes property acquired by either spouse before the marriage, compensation for personal injuries, and inheritance received by either party.
When determining how to divide property equitably, judges consider the following factors:
• Income and property of each party when they got married and when they filed for divorce
• Length of the marriage and age and health of each spouse
• Whether or not a custodial parent needs to occupy the marital residence
• Whether pension, health insurance, and inheritance rights for either party will be lost as a result of the divorce
• Whether spousal support/maintenance has been awarded
• Whether either spouse has a claim to marital property to which they do not have title to, through a contribution of labor, money, effort, etc. (such as, if one party worked to fund the other’s education)
• The liquid or non-liquid character of marital property
• Probable future financial state of each party
• If the property includes an interest in a business, corporation, or profession, what the value of that interest is and whether it would be desirable for that interest to remain free from interference from the other spouse
• Tax consequences for each party
• Whether either party wastefully dissolved marital assets
• Any transfer below fair market value made in contemplation of a divorce
• Any other factor the court deems relevant
While the court does not have to explore each of these factors, and aspects they may examine are not limited to these, this list provides general guidelines for how courts determine how to divide property between spouses in a divorce. Ultimately, equitable distribution aims to distribute marital property in a fair manner, in order to ensure that a just outcome is reached for each party in a divorce.
ABOUT THE AUTHOR: Brian D. Perskin
Brian D. Perskin developed one of the largest divorce and family law practices in the New York City area, Brian D. Perskin & Associates, P.C. He represents individuals in complex family and matrimonial law cases and has written on topics including divorce strategy, fathers’ rights, custody rights of non-parents, pension fund assets and attorneys’ fees. He earned a BA in economics from Brandeis University in 1987 and a JD from Washington College of Law in 1990.
Copyright Brian D. Perskin & Associates
More information about Brian D. Perskin & Associates
View all articles published by Brian D. Perskin & Associates
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
