Property Division in a New York Divorce: Equitable Distribution Explained
New York family law · Last reviewed October 7, 2026
New York is an equitable distribution state. When a marriage ends, the court divides marital property fairly, which often means about evenly but doesn't have to. Separate property stays with the spouse who owns it. Domestic Relations Law § 236(B)(5)(c) puts it in one sentence: "Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties."
Spouses can decide all of this themselves in a written agreement, and most do. The court steps in only when they can't agree.
What is marital property
Section 236(B)(1)(c) defines it broadly:
c. The term "marital property" shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part.
Two things stand out. Whose name is on the account or deed doesn't matter. And the marital period ends when the divorce action begins (or when a separation agreement is signed), so earnings after the case starts are generally separate.
What is separate property
Section 236(B)(1)(d) lists four kinds of separate property:
- Property acquired before the marriage, or by inheritance, or as a gift from someone other than your spouse.
- Compensation for personal injuries.
- Property acquired in exchange for separate property, and the increase in value of separate property, "except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse."
- Property described as separate in a written agreement that meets the statute's requirements, such as a prenuptial agreement.
Separate property "shall remain such" (§ 236(B)(5)(b)). The hard part is usually proof. If separate money is mixed into joint accounts or used to pay for marital assets, tracing it can be difficult; the spouse claiming it as separate should be ready to show where it came from.
Degrees and careers aren't divided
A professional license, a degree or a career doesn't count as property. Factor (7) says: "The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement." The court can still consider one spouse's contributions to the other's education or career when it divides the rest.
The 16 factors
Section 236(B)(5)(d) lists what the court weighs:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (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 to use or own its household effects; (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; (5) the loss of health insurance benefits upon dissolution of the marriage; (6) any award of maintenance under subdivision six of this part;
Factor (7) covers contributions by the spouse without title, including "contributions and services as a spouse, parent, wage earner and homemaker," and to the other spouse's career. Then:
(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 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; (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;
The last three are domestic violence against the other spouse (14), the best interest of a companion animal (15), and "any other factor which the court shall expressly find to be just and proper" (16).
The court must state the factors it considered and its reasons, and the parties can't waive that (§ 236(B)(5)(g)).
Fault mostly doesn't matter
Adultery or other marital fault isn't on the list. What the statute does count is conduct with an economic or safety effect: wasting assets (12), transferring property to defeat the other spouse's claim (13), and domestic violence (14).
The marital home
A house bought during the marriage is marital property, however it's titled. Factor (3) weighs a custodial parent's need to stay in the home, and apart from dividing ownership, the court can decide who lives in the home while the case is pending, "without regard to the form of ownership" (§ 236(B)(5)(f)). The final judgment may award the house to one spouse with offsetting assets to the other, or order it sold.
If a business or other asset can't practically be divided, the court can make a distributive award, a payment from one spouse to the other, instead (§ 236(B)(5)(e)).
Retirement accounts and pensions
The part of a pension or retirement account earned during the marriage is marital property, even if it won't be paid for years. How it's divided depends on the plan:
- Private employer plans governed by federal law (ERISA) are divided by a qualified domestic relations order (QDRO), which the plan administrator must accept.
- New York State and Local Retirement System benefits are divided by a domestic relations order. The system's guidance notes that as a governmental plan it is exempt from the federal QDRO provisions, but it honors a "properly drawn Domestic Relations Order."
- Military retired pay is divided by court order. The well-known "10/10 rule" (10 years of marriage overlapping 10 years of service) only controls whether the Defense Finance and Accounting Service pays the former spouse directly; it isn't a condition for dividing the pension.
Get the order drafted as part of the divorce. Loss of pension rights is itself a factor (4).
Debts
Debts taken on during the marriage are generally divided along with the assets, considering each spouse's circumstances. Both spouses must list their debts in the Statement of Net Worth. The court's order binds the spouses, not the lenders: if your ex was ordered to pay a joint credit card and doesn't, the creditor can still pursue you, and your remedy is enforcement in court.
Pets
Since October 25, 2021, when a court awards possession of a companion animal, it "shall consider the best interest of such animal" (factor (15)). A dog or cat is still property, but the court looks at who has cared for it and what serves it best, not just who paid for it.
Disclosure: the Statement of Net Worth
Each spouse must give the other a sworn Statement of Net Worth listing income, expenses, assets and debts, including transfers of assets during the previous three years or the length of the marriage, whichever is shorter. It's due within 20 days after a written demand, or, if there is no demand, within 10 days after the defendant has appeared and answered (§ 236(B)(4)(a)). Assets can be valued as of any date "from the date of commencement of the action to the date of trial" (§ 236(B)(4)(b)).
Automatic orders protect assets from the start
New York's automatic orders take effect for the spouse who files "immediately upon the filing of the summons," and for the other spouse on service, and last until the judgment is entered or the case ends (§ 236(B)(2)(b)). Unless the spouses agree in writing or the court allows it, neither may:
- sell, transfer, hide or encumber property, except in the usual course of business, for customary household expenses or for reasonable lawyer's fees;
- withdraw or transfer retirement funds, or apply for retirement benefits (a spouse already receiving payments may keep receiving them);
- run up unreasonable debts, including borrowing against a home or using credit lines;
- remove the other spouse or the children from existing medical, hospital or dental coverage; or
- change life insurance beneficiaries or cancel existing life, auto, homeowner's or renter's coverage.
Since January 20, 2026, a sixth order requires each spouse to send the other written notice "within ten days after receiving such notice" of a tax lien, foreclosure, bankruptcy, lawsuit, or the lifting of a bankruptcy stay affecting the marital estate.
Agreements
A prenuptial, postnuptial or settlement agreement controls property division if it is "in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (§ 236(B)(3)). That means signed in front of a notary or similar officer in deed form. An ordinary signature, or a simple affirmation, isn't enough.
Frequently asked questions
Is New York a community property state?
No. New York uses equitable distribution. Marital property is divided fairly after the court weighs 16 statutory factors, which doesn't always mean 50/50.
Is an inheritance marital property in New York?
No. Property acquired by inheritance, or as a gift from someone other than your spouse, is separate property. But any increase in its value caused partly by your spouse's contributions or efforts can be marital, and mixing it with marital funds can make it hard to prove it's separate.
Does adultery affect property division in New York?
Generally no. Fault isn't one of the factors. Wasting assets, transferring property to defeat a claim, and domestic violence are.
Who gets the house in a New York divorce?
It depends on the factors, including a custodial parent's need to stay there. The court can award it to one spouse with offsetting assets, order a sale, or decide who lives there while the case is pending.
Is a professional license or degree marital property in New York?
No. Since a 2015 amendment, the law says the court shall not treat a spouse's enhanced earning capacity from a license, degree, celebrity goodwill or career enhancement as marital property. Contributions to the other spouse's career are still considered.
Who gets the dog in a New York divorce?
The court decides possession of a companion animal considering the animal's best interest.