What is Equitable Distribution?

New York is an equitable distribution state, which means courts divide marital property in a manner which they consider equitable or fair. Equitable or fair is not always equal, however, and the court arrives at what is equitable by examining a set list of factors that consider each spouse’s contribution to the marriage and their needs moving forward.

In arriving at what is equitable or fair, courts consider:

• each spouse’s income and property upon marriage and upon divorce;

• the duration of the couple’s marriage;

• each spouse’s age and health;

• housing needs of the custodial parent, if the couple has children;

• pension, health insurance, and inheritance benefits lost by either spouse due to divorce;

• whether the court has awarded spousal maintenance,

• whether a spouse has equitable claim to marital property to which that spouse does not have title based on contribution of labor, money, or efforts as a spouse, parent, wage earner, or home maker. This includes one spouse’s contribution to the other’s earning potential, like if they worked while the other was in school;

• the liquid or non-liquid character of all marital property;

• the future financial potential of each spouse;

• if the marital property includes interest in a business, corporation, or profession, the difficulty of valuing that interest and whether it would be preferable that the interest remain intact, free from the other spouse’s interference or claims;

• tax consequences;

• whether one or either party has wastefully dissipated marital assets;

• whether either spouse has transferred or encumbered marital property in contemplation of divorce without fair consideration;

• whether either party has committed an act of domestic violence against the other and the nature, extent, duration, and impact of the act or acts; or

• any other factor the court deems appropriate.

What is Marital Property?

The term “marital property” means all property acquired by one or both spouses during marriage and before execution of a separation agreement or commencement of an action for divorce. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and parties involved.

What is Separate Property?

“Separate property” is not subject to equitable distribution and includes the following:

• property acquired before marriage or by bequest, devise, or descent, or gift from a party other than the spouse;

• compensation for personal injuries;

• property acquired in exchange for or the increase in value of separate property, unless the increase in value is due, at least in part, to the contributions or efforts of the other spouse;

• property described as separate property by written agreement of the parties.