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How Is Property Divided in a Divorce in New York?

New York is what is known as an “equitable distribution” state when it comes to divorce. Contrary to common misconception, this does not mean that the court splits property 50/50 between two divorcing spouses; rather, it means that the judge will distribute property based on a method he or she deems “fair.”

New York State’s equitable distribution rule could have several significant implications in your divorce. Just because your name is on a title or deed, this does not mean you are automatically going to be able to keep that property in your divorce. Similarly, if your soon-to-be ex’s name is on a title or deed, it does not necessarily mean that you have no legal right to that property.

Types of Properties Affected by Equitable Distribution

In the state of New York, only marital property is subject to equitable distribution. This means that only property/assets acquired during the marriage will be distributed among the divorcing spouses. It does not matter who purchased the property or acquired the asset, and it does not matter whose name is on the title or deed—if a specific property is considered marital property, it is subject to equitable distribution.

In contrast, separate property, or property belonging only to one spouse, is not subject to equitable distribution in a divorce in New York. Such properties and assets will be granted to the individual to whom they belong.

Examples of Marital vs. Separate Property

As mentioned above, marital property is any property (or assets/debts) acquired during the marriage by either spouse. Unless a property was owned by one individual prior to the marriage, gifted solely to one spouse during the marriage, or belonged to one spouse’s sole inheritance, it is generally considered marital property.

Examples of marital property include:

  • Real estate properties, such as the family home, a rental property, or vacation home
  • All income, including wages and related benefits, earned through employment
  • Retirement accounts, such as 401k contributions, and pensions
  • Vehicles acquired during the marriage, regardless of whose name is on the title/loan
  • Cash, securities, checking account balances, savings account balances, etc.
  • Furniture, artwork, and other personal belongings
  • Gifts given from one spouse to the other

Additionally, marital property includes debts acquired during the marriage, such as credit card debt, medical bills, student loans, personal loans, etc.

In contrast, examples of separate property include:

  • Real estate owned or obtained by one individual prior to marriage
  • Personal property and belongings owned by one individual prior to marriage
  • Gifts given solely to one spouse by another person
  • One spouse’s inheritance
  • Personal injury compensation not including lost wages/earning capacity compensation

This is not an exhaustive list; if you have questions about marital vs. separate property in the state of New York, please do not hesitate to contact Arnel Law Firm for a private consultation with one of our Brooklyn divorce attorneys.

How Does the Court Decide on a “Fair” Distribution of Property?

When weighing how to distribute marital property, the court ostensibly attempts to achieve a fair and equitable resolution. To do this, it examines a range of factors.

The court may weigh the following factors (and others) when determining on an equitable distribution of property in your divorce:

  • The duration of the marriage
  • The age, health, and earning ability of each spouse
  • The overall income and properties of each spouse when they first married vs. when they divorced
  • If there are children, which parent has primary custody and their need to remain in the family home
  • Whether either spouse has been awarded alimony (spousal support)
  • The degree to which either spouse wastefully dissipated marital property (if applicable)
  • Whether either spouse will lose health insurance, inheritance, or pension rights in the divorce

These are just some of many factors the court may take into account when determining how to distribute marital property in a divorce. Every situation is unique, and the exact factors involved in your case will play a large role in its outcome. We encourage you to reach out to our firm for more information.

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