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New York Equitable Distribution Attorney

Equitable Distribution in New York City

The equitable distribution of marital property is a complicated and nuanced subject that requires the knowledge and advocacy of an experienced divorce lawyer.

In New York, equitable distribution refers to how marital property and separate property is allocated and divided between the parties in a divorce action, and when the parties seek a legal separation. All of the property of the marriage is distributed, regardless of how it is held. In other words, New York is not a title state. Therefore, even if property is titled only in the name of one spouse, that will not necessarily determine which spouse will get the property. The statutory law in New York, which governs equitable distribution, is Domestic Relations Law Section 236[B]. The individual cases brought by parties to the New York divorce courts over the years have further defined and shaped the law that governs equitable distribution of property in a marriage.

Equitable does not necessarily mean 50 - 50 in New York. Equitable means a fair distribution based on numerous factors the Court must consider when allocating marital and separate property. The factors include:

  • the income and property of each party at the time of the marriage
  • the income and property of each party at the time of the commencement of the divorce action
  • the duration of the marriage
  • the age of the parties
  • the health of the parties
  • the need of the custodial parent to keep the marital home and household effects for the children
  • the loss of inheritance rights because of the end of the marriage
  • the loss of pension rights because of the end of the marriage
  • an award of spousal support
  • an equitable claim to some value of the other spouses separate property
  • the liquid and non-liquid nature of property
  • the future earning capacity of the parties
  • the ability to value an asset
  • the desirability of one party to keep an asset
  • tax implications
  • wasteful dissipation of assets by a party
  • the transfer of assets in contemplation of divorce
  • other factors that the court deems important

An important caveat: Until recently, the value of professional licenses and degrees and the "enhanced earning capacity" (see O'Brien v. O'Brien) of a party from the professional license and/or degree during the marriage was subject to equitable distribution. Effective October 25, 2015, this enhanced earning capacity is no longer an asset. However, the enhanced earnings of a party during the marriage shall be considered as a factor in the equitable distribution of the marital estate.

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