New York courts consider marriage to be both a social relationship and an economic one and the state’s Equitable Distribution Law attempts to recognize this by requiring judges to divide a couple’s property fairly.
The law recognizes a married couple’s property as either Marital Property or Separate Property. Marital Property is divided equitably between the spouses.
Marital Property is any and all property the spouses purchased during the marriage, no matter who did the actual purchasing or whose name is on the property (as in the case of a automobile), unless the property is obtained during the marriage as the result of a gift, an inheritance, for the compensation for a personal injury, or, in exchange for the spouse’s separate property. Even pension or other retirement plans are considered marital property by the courts.
Separate Property is considered any and all property a spouse owned before the marriage. Separate property can also include inheritances, gifts (other than those given by the other spouse) and personal injury payments “earned” during the marriage.
According to Domestic relations law § 236(B)(5)(d), the courts must consider a number of factors in making decisions regarding marital property:
- Each spouse’s income and property when they were married and when they started their divorce proceedings.
- The length of the marriage and the age of the respective spouses.
- The needs of the spouse with custody of the children to own or occupy the marital residence and its household effects.
- The loss of pension, health insurance benefits or inheritance rights upon dissolution of the marriage.
- Any Spousal Maintenance awarded by the courts.
- Claims, interest or contributions made in acquiring marital property not in their name.
- The career potential of each spouse.
- The liquidity of the marital property.
- The Likely financial future circumstances of each spouse.
- The difficulty or impossibility of evaluating of businesses, business assets and interest and the desire to maintain that business free from interference or claims by the other spouse.
- Tax consequences to each spouse.
- Actions taken by either spouse which are considered wasteful of the marital assets or property.
- The courts will also take into consideration other factors and situations that are unique to the case in order to determine a resolution that is just and proper to each spouse.