Equitable Distribution of Marital Property


What is Equitable Distribution of marital property?
It is a method for distributing property acquired by either spouse upon the divorce. The Supreme Court must distribute "equitably" all "marital property" regardless of the manner in which title is held, considering the following factors:

  • Income of each party at time of marriage
  • Income of each party at time of commencement of the divorce action
  • Property of each party at the time of marriage
  • Property of each party at the time of the commencement of action for divorce
  • Duration of marriage
  • Age of both spouses
  • Health of both spouses
  • Need of custodial parent to occupy or own marital residence
  • Need of custodial parent to use or own household effects
  • Loss of inheritance rights after the divorce
  • Loss of pension rights upon after the divorce
  • Any award of maintenance

Equitable claims to or interest in or direct or indirect contribution to the acquisition of the marital property by the spouse not having title, including: Joint efforts; Expenditures; Contributions as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; Liquid or non-liquid character of all marital property; Probable future financial circumstances of each party; Impossibility or difficulty of evaluating any asset or interest in a business, corporation or profession; The desirability of retaining the asset, or interest in the business, corporation or profession free from any claim or interference by the other party; The tax consequences to each party; The wasteful dissipation of assets by either spouse; Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and any other factor which the Court shall expressly find to be just and proper.

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What property is subject to equitable distribution in New York?
All property acquired by either or both spouses during the marriage, but before signing a separation agreement, and before commencement of a divorce or matrimonial action, regardless of the form title is held.

It does not include property provided for in a written agreement. It does not include "separate property", which is defined as property acquired before marriage; property acquired by bequest, devise, 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; property described as separate property pursuant to written agreement of the parties. However, the increase in value of separate property (or property acquired in exchange for separate property) is marital property subject to equitable distribution to the extent that the appreciation is due in part to the direct or indirect contributions or efforts of the other spouse.

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Is my business or professional practice subject to Equitable Distribution in New York?
Yes, as long as it is acquired during the marriage. Businesses, professional practices, and enhanced earning capacity attributable to the attainment of a career, or professional license, educational degree, profession or license is considered "property" subject to equitable distribution upon a divorce in New York.

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Does equitable distribution mean that all marital assets get evenly divided between the souses?
No, equitable does not mean equal. Marital property must be distributed equitably between the spouses, considering the circumstances of the case and of each spouse.

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