How is property divided in a New York divorce?

Marital property versus separate property

The first step is sorting what is marital from what is separate. Whose name is on the account or title does not decide it.

• Marital property:. anything either spouse acquired during the marriage, until a separation agreement is signed or the divorce action is started.
• Separate property:. property owned before the marriage, inheritances, gifts from someone other than the spouse, and personal injury compensation.
• Exchanges and growth:. property bought with separate funds stays separate. Growth in its value also stays separate, unless the other spouse helped cause it.
• By agreement:. property the spouses have called separate in a valid written agreement.

Separate property stays with its owner. Mixing separate money into joint accounts can make it hard to trace, which is a common source of dispute.

What equitable means in practice

Equitable means fair given the facts of the case. Many divisions end up close to equal, but the law does not require it. A court weighs factors listed in the statute, including:

• Each spouse's income and property at the time of marriage and when the case started.
• The length of the marriage and each spouse's age and health.
• A custodial parent's need to live in or own the marital home.
• Each spouse's contributions, including homemaking, child care and support for the other's career.
• Lost pension or inheritance rights, lost health insurance and any maintenance award.
• Tax effects, how hard an asset is to value or sell, and each spouse's future finances.
• Wasteful spending of marital assets, transfers made in anticipation of divorce, and domestic violence.

The value of a professional license or degree earned during the marriage is not divided. A spouse's contributions toward it can still be considered.

How the division is carried out

Some assets can be split directly, such as bank accounts. Others, like a house or a business, are hard to divide. In those cases a court can order a distributive award, a payment from one spouse to the other to balance the division.

Automatic orders bind the spouse who files as soon as the summons is filed, and the other spouse once it is served on them. Neither may sell, hide or transfer property, or take on unreasonable new debt, without written consent or a court order. Ordinary living expenses are allowed.

Dividing property by agreement

Spouses do not have to leave the division to a judge. In mediation, they can list their assets and debts, agree on values, and decide who keeps what.

To be enforceable, the agreement must be in writing, signed by both spouses, and acknowledged the way a deed is. It then becomes part of the divorce judgment. Talk to an attorney about complex assets such as a business or a pension.