A: NY has statutory factors that the Judge must consider in dividing marital assets, debts & property. New York is an “equitable property” state. This means that any property, asset and/or debt accrued during your marriage is considered marital property, and therefore subject to distribution between parties.
“Equitable”, otherwise known as “fair”, means that the court will use its discretion to determine how and to whom property will be distributed. Some examples of marital property are as follows: homes and other real estate properties, retirement plans (pension, 401(k), etc.), professional degrees and licenses, art, decor and other personal property, as well as cars, boats, RVs, etc. (this is a non-exhaustive list).
Additionally, the “appreciation” in value of some separate property may also be distributed to the non-title-holding spouse, if s/he can prove sufficient direct/indirect efforts which allowed the appreciation to occur. And because any distribution done by the Court must be “equitable,” this means in some case it is 50% but in other cases the court could use a higher (60+%) or lower (0-40%) percentage.
Moreover, the Court may distribute some assets (like a house or bank account) 50%, and other assets (like the value of a degree) only 10-20% within the same case.
1. Statutory Factors
The statutory factors pursuant to Domestic Relations Law 236 are:
- the income and property of each party at the time of the marriage, and at the time of the commencement of the action;
- the duration of the marriage and the age and health of both parties;
- the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
- the loss of inheritance and pension rights upon dissolution of the marriage as of the date of the dissolution;
- the loss of health insurance benefits upon dissolution of the marriage;
- any award of maintenance under Domestic Relations Law, Section 236-B(6);
- any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
- the liquid or non-liquid character of all marital property;
- the probable future financial circumstances of each party;
- the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
- the tax consequences to each party;
- the wasteful dissipation of assets by either spouse;
- any transfer or encumbrance made in contemplation of a matrimonial action without a fair consideration; and
- whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts; and
- in awarding the possession of a companion animal, the court shall consider the best interest of such animal. “Companion animal”, as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and
- any other factor which the court shall expressly find to be just and proper.
Under the “any other factors” application, a Judge may consider such things as financial assistance from the parents of one spouse which allowed for the accrual of assets and/or property, unpaid work one spouse performed in the other’s business as well as the period of physical separation of the parties prior to the commencement of the divorce. One common factor usually NOT considered in the distribution of property/assets is marital fault.