How is Property Divided in a New York Divorce?

In the United States, we have two methods of dividing a married couple's property in a divorce: equitable distribution and community property. New York follows the equitable distribution model, which means a married couple's property is divided equitably – or fairly.

Unlike community property states, such as California, Nevada, and Arizona, where a couple's assets are split down the middle, equitable distribution states look at the totality of a couple's circumstances and divides their marital property in a manner that is deemed fair.

Before New York became an equitable distribution state, it was a "common law property state." Under the old system, when a couple divorced, their property was distributed to the spouse whose name was on the title. For instance, if a mortgage was titled in a wife's name alone because her credit was better than her husband's, she would get the house in the divorce.

New York Is Now an Equitable Distribution State

Today, New York is an equitable distribution state, as the majority of the states are. Only a handful of states follow the community property method of distribution.

When a Long Island couple divorces and the court is involved, the court must divide their property in a fair and equitable manner. However, this does not necessarily mean the couple's assets will be divided evenly.

When a judge is dividing a couple's marital assets, he or she will consider the following factors before rendering a decision:

    Two wedding rings sit on a lawyer's desk
  • The age and health of each spouse
  • The length of the marriage
  • Each spouse's income and assets
  • Any health insurance or inheritance rights a spouse loses because of the divorce
  • Whether or not the court awards spousal maintenance
  • Either spouse's contributions as a stay-at-home parent or homemaker
  • Either spouse's contributions to the assets
  • Each spouse's earning capacity
  • The tax consequences of the division of the assets
  • Whether either spouse has wasted the marital assets
  • Any other factor the court deems relevant

When a couple's assets are divided, the first order of business is to determine what is marital property and what is separate property. Only marital property is subject to division in a divorce; therefore, each spouse gets to keep his or her separate property, which includes:

  • Property acquired before the marriage
  • Inheritances and gifts received by one spouse alone
  • Personal injury awards for one spouse
  • Any property distinguished as separate property in a prenuptial or postnuptial agreement

The appreciation of separate property assets that are active in nature, ie. a business or commercial real estate, or where active efforts were used to increase the value of the separate property assets are marital. Speak to your matrimonial counsel for a greater understanding of whether the appreciation of a separate property asset is marital. In addition, separate property assets that are commingled (placed into a joint account with the other spouse) will be deemed marital. Consult with your matrimonial attorney for further information on these nuances.

Can Spouses Reach Their Own Agreement?

Yes, absolutely. We encourage spouses to collaborate with each other and reach their own marital settlement agreement. However, if a couple is unable to agree on the terms of their divorce, then a judge will have to step in and decide for them, and in accordance with New York's laws of equitable distribution.

If you and your spouse can agree to continue negotiations until you reach a fair settlement, it would be the most cost-effective approach. When couples are able to put their differences aside and negotiate a settlement, they can save a fortune on litigation costs and as a result, preserve the marital estate as much as possible.


Looking for a Long Island divorce attorney? Contact our firm to take advantage of more than 100 years of collective experience!


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