In a recent blog post for It’s Over Easy, an online platform through which couples can file and finalize uncontested divorces, Judith Poller, Co-Chair of Pryor Cashman’s Family Law Group, explained how property is divided when a couple divorces in New York.

(Excerpts from the blog post are featured below)

When a couple gets divorced in New York, the rules of “equitable distribution” will be applied to divide the property earned or acquired during the marriage. While this may sound relatively straightforward what is “ownership” of marital property and what is “equitable” can take on quite a life of its own and are quite frankly, far from straight forward. The premise of equitable distribution is that marriage is, among other things, an economic partnership of equals. But, equitable does not mean equal and New York law requires that the contributions of each spouse be considered in determining a fair distribution. In the heightened tensions of divorce, “fair” can be challenging and elusive.

As a starting point, there is a presumption under New York law that any property acquired from the date of the marriage through and until the date of the commencement of a matrimonial action (not just physical separation) is marital property. In certain instances, parties may enter into a signed agreement in which they determine some other ‘end date’ for the accumulation of marital property.

Marital property is very broadly defined under New York law. If someone claims that an asset is their “separate property,” and should not be shared, the burden shifts to that person to prove such claim. Separate property includes:

  • Any property that was owned by either spouse prior to the marriage, including real property or personal property;
  • Any inheritance or gift received by a party during the marriage from a third party;
  • Compensation received for the pain and suffering portion of a personal injury award;
  • Property acquired in exchange for separate property;
  • Any increase in the value of separate property, except to the extent that the increase is due to (i) the active efforts of the titled spouse, or, (ii) the non-titled spouse’s contributions during the marriage;
  • Property described as separate property in a written agreement (i.e. prenuptial or post-nuptial agreement).

Click here to read the full blog post.