Whether you married your spouse decades ago and amassed significant property together or you each entered the marriage with assets, divorce brings serious property division concerns. New York follows the equitable division standard, so divorcing couples must split marital debts and assets fairly.
When you cannot reach an agreement on property division, the court will decide during your divorce proceedings.
Separate vs. marital property
When the judge determines property division, the court requires a full accounting of marital and separate property. In general, an asset earned or acquired by either spouse during the marriage constitutes marital property. Assets that either spouse owned before the marriage fall into the category of separate property. If only one spouse receives a personal injury settlement, gift or inheritance during the marriage, those funds are also separate property. However, when separate property increases in value during the marriage, such as with real estate, the law categorizes the appreciation amount as marital property.
Factors in property division
New York courts establish an equitable division of marital property by considering these factors:
- How long the marriage lasted
- Each spouse’s individual financial circumstances and earning potential
- Each spouse’s individual debts, benefits and separate property
- The age of each spouse
- Each person’s health status
- Each spouse’s monetary contributions to the marriage as well as non-monetary contributions such as raising children and keeping the home
- The tax consequences of property division decisions
While New York does not recognize fault in a divorce, if one spouse wasted marital assets on gambling, substance use or extramarital affairs, the court may award the other spouse additional property to compensate.
Some types of assets, such as real estate equity and business ownership, can be difficult to divide compared to liquid assets like cash. In this situation, the judge may order temporary or permanent spousal support or a one-time cash payment to balance assets such as stock or a business that the other spouse receives.