Property Division Attorney in Buffalo & Williamsville, NY
New York divides marital property “equitably” — not necessarily equally. Understanding what qualifies as marital property and how judges weigh the equitable distribution factors can make a substantial difference in your outcome.
Equitable Distribution: What It Means in New York
New York is an equitable distribution state, governed by DRL §236B. Unlike community property states (such as California), New York does not automatically split marital assets 50/50. Instead, courts divide marital property in a manner that is “fair and equitable” under all the circumstances — which may be 50/50, but just as often is 55/45, 60/40, or some other allocation depending on the case facts.
The threshold question in any property division case is: what is marital property, and what is separate property?
Marital Property vs. Separate Property
Marital property is everything acquired by either spouse during the marriage, regardless of whose name it is in. This includes: income earned during the marriage, the marital home and any real estate purchased during the marriage, retirement account contributions and appreciation accrued during the marriage, business interests grown during the marriage, and investments made with marital funds.
Separate property is not subject to equitable distribution and includes: property owned by either spouse before the marriage, inheritances received by one spouse (even if received during the marriage), gifts from third parties to one spouse, and compensation for personal injury (excluding lost wages). Separate property can become commingled with marital property — and therefore partially or fully marital — if it is mixed with marital funds or treated as a marital asset over time.
Tracing separate property contributions and protecting them from commingling arguments is one of the most complex and consequential issues in property division cases.
The Equitable Distribution Factors
Courts weigh up to 14 statutory factors in determining how to divide marital property:
- The income and property of each party at the time of marriage and at the time of the divorce action
- The duration of the marriage
- The age and health of both parties
- The need of a custodial parent to occupy the marital home and use household effects
- The loss of inheritance and pension rights upon dissolution
- The loss of health insurance benefits upon dissolution
- Any award of maintenance under DRL §236B(6)
- Any equitable claim to, or interest in, or direct or indirect contribution to the acquisition of marital property
- Whether either party has wasted or dissipated marital assets
- The liquid or non-liquid character of the marital property
- The probable future financial circumstances of each party
- Difficulty of evaluating any component asset or any interest in a business, corporation, or profession, and the economic desirability of retaining such asset or interest intact
- The tax consequences to each party
- Whether one spouse has impeded or concealed assets
Assets That Require Special Handling
- The marital home — One spouse may buy out the other’s equity, the home may be sold and proceeds divided, or courts may allow a custodial parent to remain in the home for a defined period before sale. Mortgage refinancing requirements and tax implications must be addressed.
- Retirement accounts — 401(k)s, 403(b)s, and pensions require a Qualified Domestic Relations Order (QDRO) or Domestic Relations Order (DRO). These must be drafted correctly and approved by the plan administrator or state pension board. Errors are extremely difficult and sometimes impossible to correct after the fact.
- Business interests — A spouse who owns a business, professional practice, or partnership interest must have it formally valued. Business valuation methodologies vary (income approach, market approach, asset approach) and can significantly affect the division outcome.
- Enhanced earning capacity / professional licenses — New York uniquely recognizes professional licenses and enhanced earning capacity as a form of marital property. A medical license or law degree obtained with marital funds and the support of a spouse can have a distributable value.
- Deferred compensation and stock options — Unvested stock options and deferred compensation require careful analysis to determine the marital portion.
Frequently Asked Questions
Does equitable mean equal in New York?
Not necessarily. Equitable means fair under all the circumstances. In many cases a 50/50 division is the fair outcome, but the court has broad discretion to deviate based on the statutory factors. A spouse who made substantially greater financial contributions, or who was the victim of deliberate asset dissipation by the other, or who sacrificed significant career advancement, may receive more or less than 50%.
Is my inheritance protected in a New York divorce?
Inheritances received by one spouse are separate property and are not subject to equitable distribution — provided they have been kept separate. If an inheritance is deposited into a joint account, used to pay the joint mortgage, or otherwise commingled with marital funds over time, the separate property protection can be lost in whole or in part. Maintaining meticulous records and keeping inherited funds in individual accounts is critical to preserving the separate property character.
What happens if a spouse hid assets?
Hiding or dissipating marital assets is treated seriously by New York courts. Discovery tools — including subpoenas for bank records, credit card statements, business records, and tax returns — can uncover hidden assets. A forensic accountant can trace unusual financial activity. Courts can and do award the non-offending spouse a larger share of the remaining marital estate as a remedy for dissipation, and can also hold a spouse in contempt.
How is property divided if it’s titled in only one spouse’s name?
Title does not control in New York. Property acquired during the marriage with marital funds is marital property regardless of which spouse’s name appears on the title, deed, or account. A bank account opened solely in one spouse’s name that received that spouse’s employment income during the marriage is marital property.
How is a pension divided?
The portion of a pension earned during the marriage is marital property. Public sector pensions (teachers, police, NYCRS, etc.) are divided through a Domestic Relations Order that the pension system must approve. Private sector defined benefit plans require a QDRO. The calculation of the marital share typically uses a Majauskas formula: the marital portion of the pension benefit equals the years of service during the marriage divided by total years of service.
Complete Guide to Divorce in New York
12 pages covering equitable distribution, maintenance, child custody, timelines and more — written by Weinrieb Law attorneys.
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