How Property Is Divided in a New York Divorce

New York is an equitable distribution state. That phrase confuses people, so here is what it means. The court first decides what is marital property and what is separate property. Separate property stays with the spouse who owns it. Marital property is divided between the spouses in a way the court considers fair after considering the factors set out in the statute. Fair does not mean equal, although in a long marriage with two contributing spouses it usually comes close.

What is marital property?

Everything acquired by either spouse from the date of the marriage to the date the divorce action is commenced, regardless of whose name is on it. That includes the house, bank accounts, retirement accounts to the extent contributions were made during the marriage, businesses, cars, and debts. The Court of Appeals in Fields v. Fields in 2010 confirmed that property acquired during the marriage is presumed marital and that the spouse claiming otherwise has the burden of proving it.

What is separate property?

DRL 236B(1)(d) lists it. Property owned before the marriage. Property received by inheritance or by gift from someone other than your spouse. Compensation for personal injuries. Property described as separate in a valid prenuptial or postnuptial agreement. And property acquired in exchange for separate property, or the increase in value of separate property, except to the extent the increase came from the efforts or contributions of the other spouse.

That last clause is where most separate property claims are won or lost. If you owned a rental property before the marriage and it went up in value because the market went up, the increase is yours. If it went up because you renovated it during the marriage with marital money or your spouse managed it, part of the increase is marital. Hartog v. Hartog and Price v. Price are the controlling Court of Appeals cases and the court does not have to be precise in the apportionment.

What is commingling and why does it matter?

Separate property that is mixed with marital property can lose its separate character. Two Second Department decisions from the last year show both sides of this.

In Wen Wen Sun v. Ti Zhou, decided November 2025, the wife traced 2.1 million dollars of gifts from her parents into the marital residence and received that amount back as a separate property credit before the remaining equity was divided.

In Borzilleri v. Borzilleri, decided May 2026 in a Suffolk County case, the husband's pre-marital property in Cutchogue became marital when it was transferred into a joint trust, and the proceeds from a pre-marital sale lost their separate character when they were used to pay down a marital mortgage.

The lesson is simple to state and hard to follow. If you want separate property to stay separate, keep it in your name alone, keep the records that show where it came from, and do not use it to pay marital expenses or put it in joint names. If you did any of those things, tell your attorney at the first meeting so the tracing work can start.

What are the sixteen factors?

Once the marital property is identified, DRL 236B(5)(d) requires the court to consider the following.

1. The income and property of each party at the time of the marriage and at the time the action was commenced.
2. The duration of the marriage and the age and health of both parties.
3. The need of a custodial parent to occupy or own the marital residence and its household effects.
4. The loss of inheritance and pension rights upon dissolution as of the date of dissolution.\
5. The loss of health insurance benefits upon dissolution.
6. Any award of maintenance.
7. Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of 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 court may not treat the value of a spouse's enhanced earning capacity from a license, degree, celebrity goodwill, or career enhancement as marital property.
8. The liquid or non-liquid character of all marital property.
9. The probable future financial circumstances of each party.
10. The impossibility or difficulty of evaluating any component asset or interest in a business, corporation, or profession, and the economic desirability of retaining it intact and free from claims or interference by the other party.
11. The tax consequences to each party.
12. The wasteful dissipation of assets by either spouse.
13. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.
14. Whether either party has committed an act of domestic violence against the other, and the nature, extent, duration, and impact of that act. This factor was added in 2020.
15. In awarding the possession of a companion animal, the best interest of the animal. This factor was added in 2021. Companion animal means any dog, cat, or other domesticated animal normally kept in the home, and does not include farm animals.
16. Any other factor the court expressly finds to be just and proper.

The court must set out the factors it considered and the reasons for its decision in writing. That requirement is what makes an equitable distribution award reviewable on appeal, and it is why the record you build at trial matters.

What about dissipation?

Money spent on a girlfriend or boyfriend, gambled away, or moved to a relative in the year before the divorce is charged against the spouse who spent it. In July 2026, the Second Department affirmed a Nassau County judgment that divided the estate equally but charged the husband with the funds he had dissipated. Dissipation is proven with bank records, so the financial disclosure exchanged before the preliminary conference is where these claims are found.

Practical points

Retirement accounts are divided by a qualified domestic relations order and the marital portion is calculated under the formula the Court of Appeals approved in Majauskas v. Majauskas in 1984. The marital residence is usually sold, bought out, or kept by the custodial parent for a period of years. Debts are divided too, and a debt one spouse ran up for a purpose unrelated to the marriage can be assigned to that spouse. Tax consequences are a statutory factor, which means the after-tax value of an asset, not its face value, is what should be compared.

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