What You Need to Know About Property Division During Divorce in New York

Divorce brings about many life changes. After concerns about your living situation moving forward and other major adjustments to your personal life, your biggest concern likely regards finances. Questions about property division - who keeps the marital home, the car(s) and the accumulated wealth and possessions that marriage brings - may keep a person contemplating divorce up at night. Knowing the basic laws governing property division during divorce in New York may help to alleviate some of those concerns.

New York is one of the majority of states which uses a system of "equitable distribution" to divide property after divorce. Equitable distribution simply means that the court will seek to divide what it regards as "marital property" fairly between each party to the divorce. Thus, the court's first step in distributing property is to determine which property is marital.

New York statute defines marital property as "property acquired by either or both spouses during the marriage ... regardless of the form in which title is held." This means that regardless of which spouse bought, earned or holds title to the property, an asset acquired by either spouse during the marriage is marital property and subject to division to either party by the court.

Unlike marital property, separate property is not subject to division and may be retained by the spouse who brought it into the marriage. Examples of separate property include previously held bank accounts that were never joined with marital assets, inheritances and gifts received from third parties, and compensation for personal injuries. If the couple has a prenuptial agreement in place, that agreement can also define what property is separate and not marital.

Equitable Distribution Factors

Equitable distribution is not the same as equal, but rather what the court deems fair given the specific circumstances of the divorcing couple. The court considers several factors to determine what division is equitable for both spouses:

  • The duration of the marriage
  • The individual incomes of the parties
  • The age and health of both parties
  • The need of the custodial parent to remain in the family residence
  • The future financial prospects of each party
  • The spousal support or maintenance awarded

The governing statute lists many more factors, but the court is not limited in what it can and cannot consider regarding the marriage. Rather, the statute provides that the court may use "any other factor which the court shall expressly find to be just and proper" to determine what is an equitable distribution.

Separation Agreements as an Alternative

New York also recognizes formal separation agreements, in which the parties agree to the legal issues of the divorce on their own. These agreements may be temporary or permanent, and they cover the same topics as divorce decrees, such as child custody arrangements, alimony or spousal support and distribution of marital property.

Anyone considering a divorce should speak with an experienced family law attorney to discuss their legal options regarding divorce.