How Is Property Divided In A New York Divorce?

Marital assets and debts are divided more or less equally in a New York divorce. However, some assets and debts are not marital but belong to one spouse alone, and these are not divided. Additionally, you may have a pre- or post-nuptial agreement in place that will affect the division.

What Counts As A Marital Asset In New York?

Only marital assets (and debts) are divided in a divorce. What makes an asset marital in nature, as opposed to being the separate property of one spouse alone?

In general, anything you acquire during your marriage will be considered a marital asset even if only one person’s name is on the title. There are a few exceptions to this rule – inheritances received by one spouse, gifts from one spouse to the other and personal injury compensation awards are not marital assets.

However, some assets can be considered marital, at least partially, even if you acquired them before the marriage. For example, if one spouse bought the house before the marriage, you might expect that the house is that spouse’s separate property. However, if the house appreciated in value during the marriage, that growth in value would generally be considered marital property.

Another thing to understand is that one spouse’s separate asset could become a marital asset if it becomes mixed with marital assets. This is called “transmutation.” For example, one spouse may have a bank account that existed before the marriage. If he or she continues to use that bank account during the marriage, mixing in new money, the bank account is transmuted into a marital asset. Transmutation can happen to a variety of assets when they are re-titled to include the other spouse or mixed with marital assets.

How Are Marital Assets Divided In New York?

It’s a simple process, really. Once we determine which assets are marital in nature, we divide them 50/50 – with limited exceptions. Those exceptions include having a valid pre- or post-nuptial agreement in place or when someone dissipates marital assets.

Dissipation means wasting the marital estate. For example, one spouse might have gambled away $100,000 of marital money. If that happened, the other spouse would get a credit for half of that amount.

You might be picturing a long courtroom battle where each asset is examined and labeled either marital or separate. In most cases, the spouses negotiate or mediate these issues instead of going to court over them. Often, assets that one spouse wants to keep will end up being traded for another one that the other spouse wants.

Who Gets The Pets?

Animal companions are a special case in New York, and the divorce laws around them are rapidly changing. As of 2024, pets are essentially subject to division as property. First, we determine if the pet is marital in nature or the separate property of one spouse alone. If the pet was acquired during the marriage, it is generally a marital asset.

If the question goes before a judge, as opposed to being resolved in negotiation or mediation, the judge will consider the individual facts of the case and attempt to award the pet in a way that represents “the best interest of all concerned.”

In other words, New York law doesn’t quite have “pet custody,” but pets are not simply assigned to the person with the strongest property interest in them. Judges will weigh factors and try to give the pet to the person who is most appropriate overall.

Conclusion

There are a lot of issues involved in dividing property in a New York divorce, and getting to a fair division can be tricky. I tell my clients to put together a wish list, a want list and a need list. Then, we can move forward in negotiations, mediation or courtroom litigation to get the best result we can.