At one time, New York was a common law property state, meaning that all assets titled in the name of one spouse belonged to them after divorce. This created so many financial difficulties, especially for women who gave up careers to raise a family, that in 1980 New York passed the Equitable Distribution Law, which is the system in use today.

New York is like other states in that divorcing couples can reach their own agreement regarding the division of marital property. If they are unable to agree, then there are statutory factors listed in Domestic Relation Law Section 236 B that courts can use to guide their decisions. Below is an overview of some of these elements.

Each spouse’s income at the time of the marriage and time of divorce

If either party experienced a significant change in income between the day of the wedding and the day the divorce petition was filed, then the court might consider the difference. If one spouse stayed at home or experienced diminished earning ability through no fault of their own, then they may be awarded a larger share of the marital estate to minimize the financial impact of divorce.

The duration of the marriage

When the marriage was of short duration, the court generally tries to divide the property in a way that restores each spouse to the financial position they would have been in if the marriage had not occurred. Longer marriages have a larger marital estate and call for careful consideration of each spouse’s contribution.

Age and health of each party

If a spouse has been staying home or working only part-time for years and is now older, then they may find it more difficult to become financially self-sufficient, so the court may award them more marital property. Likewise, if a spouse is in poor health, then they may need more financial resources to support themselves.

The need of a custodial parent to keep the marital home

Divorce is hard on kids, and being able to stay in their family home with the custodial parent is an ideal arrangement. If the marital estate has enough assets to offset the home’s value, then the court may award the home to the custodial parent and items of equal value to the other parent. If there aren’t enough assets, then the custodial parent may instead be granted the right to live in the home until the youngest child finishes high school or turns 18.

Whether one spouse is awarded maintenance

When one spouse is awarded maintenance, it can decrease their need for assets that produce income, so marital property may be divided in a different manner than if there had been no maintenance award.

Whether one spouse wastefully dissipated assets

If one spouse had an affair and spent marital funds on their paramour or they ran up a jointly owned credit card to be spiteful, then the court can award the other spouse a greater share of marital property to compensate.

Contact a New York divorce attorney

When you’re filing for divorce in New York and can’t agree with your spouse on how to divide marital property, an experienced New York divorce attorney will help ensure that the assets you receive are a fair reflection of your contribution to the marriage and will help sustain you as you adjust to a new, single life. Jayson Lutzky is a Bronx, New York divorce attorney with over 35 years of experience. If you have questions regarding a divorce matter, then set up a free in-person initial consultation with Mr. Lutzky. You may reach his office at 718-514-6619 or by visiting