Defining Terms in Property Division in New York

When it comes to determining property division (equitable distribution) in New York, most people assume that the courts seek equal distribution of property and assets shared in a marriage. However, the term “equitable” is legally defined as “fair,” not as equal.

Factors Involved in Property Division in New York

The court will examine the overall finances of the marriage and each spouse as an individual when rendering a property division ruling. Some factors that can affect the court’s decision include:

  • The income and individual property of each spouse prior to the marriage
  • How long the marriage lasted
  • The age and overall health of each spouse
  • Child custody – the primary caregiver may need the use of property (a home, furniture, a vehicle) to provide care
  • Loss of benefits such as pension payments or insurance due to divorce
  • Alimony orders
  • Non-financial claim to property
  • Future earning potential and tax profile of each spouse
  • The financial behavior of each spouse – wasteful behavior or financial mismanagement can be a deciding factor
  • Attempts by a spouse to hide or transfer property or assets in an effort to unlawfully keep them from the other

Marital vs. Separate Property

Separate property – property owned wholly and individually by the spouses and frequently preceding the marriage – are unaffected by divorce. The courts will not transfer such property to the other spouse under any circumstances, with the exception of the spouse demonstrating they have contributed to the financial maintenance of the property – for example, by paying the taxes on the property. Property a spouse had prior to the marriage, gifts they receive individually during the marriage, pain and suffering awards they may receive during the marriage and inheritance are all regarded as separate property. However, separate property can sometimes be unwittingly converted by a spouse into marital property. For example, if a spouse inherits money from a parent’s estate and deposits it into a joint account with their spouse, a court may find that the party intended to gift half of the inheritance to their spouse and those funds are regarded as marital.

Property division in New York has many nuances and what you feel is “fair” may not always be what the court will see as fair.