New York views marriage as an economic partnership.  In a divorce, it may not necessarily be fair for each party simply to get half of the assets that they own as a couple.  Property may have been bought during the marriage and is only in one party’s name or one party may need more than half of the assets due to circumstances.

The first step is to determine which property is subject to equitable distribution and which is separate.   All property is considered subject to equitable distribution, including businesses, real estate, retirement accounts and pensions.  However, there are several major exceptions to this rule, including the following:

• Property acquired by one party prior to marriage;
• Property acquired by one party after being legally separated;
• Property acquired by one party after the commencement of a divorce action;
• Property acquired by one party through inheritance;
• Property acquired through a negligence action (such as auto accident or slip and fall);
• Disability pensions (only the disability payment and not the pension portion);
• Property purchased by one party through the sale or trade of separate property;
• Property received by one party as a gift from a third party; and
• Property agreed by the parties in a pre-nuptial or post-nuptial agreement to be separate property.

Property that would be considered separate can have become marital property during the marriage if it was put in both names or comingled.  For example, if the owner of a bank account adds the spouse’s name to that account, the spouse can argue that the money in that account is subject to equitable distribution.  Separate property can also become at least partially marital property if its value was increased due to the efforts of the non-titled spouse.  The increased value would be subject to equitable distribution.  For example, assume that one party purchased a house in his or her own name prior to marriage, but that, after the marriage began, the party’s spouse contributed his or her own money to renovate the kitchen.  The spouse can argue that the increased value of the house due do the renovation is subject to equitable distribution.

Once the parties agree or, absent such an agreement, the court determines which property is subject to equitable distribution, the parties may agree or, absent such an agreement, the court will determine a fair apportionment of the property between the parties.  Among the things that the court will take into consideration are the following:

• Income of each party at the time of marriage;
• Income of each party at the commencement of the divorce action;
• Property of each party at the time of marriage;
• Property of each party at the commencement of the divorce action;
• Duration of the marriage;
• Age of each party;
• Health of each party;
• Need of the custodial parent to occupy or own the marital residence;
• Need of the custodial parent to use or own the household effects;
• Loss of inheritance rights upon dissolution of the marriage as of the date of dissolution;
•  Loss of pension rights upon dissolution as of the date of dissolution;
• Any award of maintenance (formerly known as alimony);
• Equitable claims to or interest in or direct or indirect contribution to the acquisition of the marital property by the party not having title, including:
  (a) Joint efforts;
  (b) Expenditures;
  (c) Contributions as a spouse, parent, wage earner or homemaker and to the career or career potential of the other party;
• Liquid or non-liquid character of all marital property;
• Probable future financial circumstances of each party;
• Impossibility or difficulty of evaluating any asset or interest in a business, corporation or profession;
• The desirability of retaining the asset or interest in the business, corporation or profession free from any claim or interference by the other party;
• The tax consequences to each party;
• The wasteful dissipation of assets by either spouse;
• Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
• Health insurance of the parties; and
• Such other factors that the court shall expressly find to be just and proper.

This section provides a general idea of the law in New York concerning how property is divided in a divorce.    Often, the court’s decision will be guided by the unique facts of the case before it. 

If you are considering divorce, call us at (718) 625-0800 to schedule a free consultation. .  During the free consultation, we will inform you of your options and our fees.