New York’s Equitable Distribution Law recognizes marriage as an economic as well as a social partnership. The law requires that a judge divide property as fairly as possible.
The Equitable Distribution Law talks about two types of property for purposes of divorce: marital property and separate property. Marital property will be divided between the two spouses.
Marital Property is all property either spouse bought during the marriage, regardless of whose name is on the property. Pension plans and other retirement plans are considered marital property. The portion of marital property earned during the marriage will be divided by the court.
On the other hand, Separate Property is property a spouse owned before the marriage, or any inheritance or personal injury payments or gifts from someone other than the spouse during the marriage. To see the factors a court should consider in making an equitable distribution award, see Domestic Relations Law § 236(B)(5)(d).
When a couple divorces, the court will divide their marital property fairly, considering several factors. These factors are:
- Each spouse’s income and property when they married and when they filed for divorce
- The age and health of each spouse
- The duration of the marriage
- The need of the custodial parent to live in the family home
- The pension, health insurance, and inheritance rights either spouse has or will lose as a result of the divorce
- Whether the spouse has been awarded spousal support (alimony)
- Whether either spouse has wastefully dissipated marital assets
- Whether either spouse has transferred or burdened marital property in contemplation of divorce