Equitable Distribution and Property Division

New York is an equitable distribution state, not a community property state like California. A community property state requires that all marital property, including separate property brought into the marriage by one spouse, be subject to a 50-50 split in the event of a divorce.

Equitable distribution means that in the event of a divorce, the marital property will be divided between the spouses in a way that is fair and equitable, and not necessarily on a 50-50 basis.

The court will decide what is fair based on what each spouse contributed to the marriage and what each spouse will require to move forward after the divorce. Only marital property is divided by the court. This property includes all property acquired by either or both parties during the marriage, regardless of the form in which title is held. Therefore, each spouse's income during the marriage, property purchased with that income, properties purchased during the marriage such as a house or automobile, retirement benefits each spouse earned during the marriage, and the appreciation in the values of these properties, professional licenses, businesses, and professional practices are considered to be marital property, subject to equitable distribution during a divorce.

In deciding upon the equitable distribution of the marital property, the court will take into consideration the duration of the marriage, the age and health of the parties, each spouse's income and property when they married and when they filed for divorce, the tax consequences to each spouse, whether either spouse has wastefully dissipated marital assets, whether either spouse has fraudulently transferred marital property to a third party in contemplation of a divorce, to name just a few factors. The court will consider any other factor that it finds to be just and proper.

On the other hand, separate property is not subject to equitable distribution. Each spouse may keep his or own separate property, except where the value of this property has increased due to contributions made by the other spouse. Separate property includes property either spouse acquired before the marriage, inheritances or gifts, property covered in a valid prenuptial agreement, property acquired during the marriage in exchange for separate property, and compensation for personal injuries.

However, if separate property is commingled with marital property, in such a way that they cannot be isolated and identified, then the separate property is now considered to be marital property, and is subject to equitable distribution.