When you divorce in New York today, Domestic Relation Law Section 236 requires the marital estate to be divided equitably. In this sense, “equitable” means fair as opposed to equal, although New York family court judges strive to divide assets in a manner that gives each spouse what they need to pursue an independent life after divorce.

When common law was the rule

The law wasn’t always so responsive to personal needs. Before 1980, New York was a common law property state, meaning that all property owned by each spouse before the marriage remained theirs during the marriage and after divorce. The only exception was property titled in the names of both spouses.

As you can imagine, this created problems for stay-at-home spouses, which were almost exclusively women. They lacked the financial means to acquire their own property, so their only option for financial stability in the wake of divorce was alimony. Even this prospect was uncertain: if a husband could prove that his wife’s conduct caused the marriage to break down, she would be denied alimony.

The few men who stayed at home to care for their children and maintain the home were in an even more difficult situation. The law at the time had a built-in gender bias that prevented them from receiving alimony.

Passing the Equitable Distribution Law

This restrictive and unfair situation changed in July 1980, when the Equitable Distribution Law was passed, amending NY DRL Section 236 and making New York an equitable distribution state. It introduced several significant changes, including:

  • Making certain statutes within the Family Court Act and Domestic Relations Law gender-neutral
  • Changing rules that imposed obligations on only one spouse
  • Replacing the words “husband” and “wife” with “parent.”

An overview of equitable distribution

Today, New York courts use a three-step approach when dividing a marital estate.

  • Identifying separate vs. marital property
  • Assigning a value to all marital property eligible for distribution.
  • Applying any relevant legal factors that are appropriate for the situation and dividing the assets

What is separate property?

DRL 236 B(1)(d) identifies separate property as assets like the following:

  • Property that a spouse acquired before the marriage
  • Gifts to one spouse from anyone except the other spouse
  • Property inherited by one spouse
  • Personal injury awards for punitive damages and pain and suffering
  • Property designated as separate by a fair and legally valid pre- or post-marital agreement

What is marital property?

Money and property acquired during the marriage are presumed to be marital property unless special circumstances apply, such as property that is inherited or gifted to one spouse only. In New York, this can even include business licenses and educational degrees.

Contact a New York divorce attorney

Equitable distribution is designed to be fair, but it can also be complex. A New York divorce attorney can help you ensure that you leave your marriage with property that fairly represents your contributions. Jayson Lutzky is an attorney with over 35 years of legal experience with an office in the Morris Park area of the Bronx, New York. If you are seeking effective representation in a divorce or family court case, then call 718-514-6619 to set up a free in-person initial consultation with Mr. Lutzky.