What counts as marital property?
Generally, property acquired by either spouse during the marriage, regardless of whose name is on the title. That includes wages earned during the marriage, the home, vehicles, business interests, and the portion of retirement accounts and pensions that accrued during the marriage.
Marital debt is divided the same way. A credit card in one spouse’s name that funded the household is a marital debt.
What stays separate?
- Property owned before the marriage
- Inheritances received by one spouse
- Gifts to one spouse from someone other than the other spouse
- Compensation for personal injuries
Separate property becomes complicated when it is mixed with marital property — an inheritance deposited into a joint account, or a premarital home that both spouses spent marital income maintaining. The increase in value of separate property can also become marital where the other spouse contributed to that increase. These are fact questions, and they are where the real argument usually is.
What does a court weigh?
DRL §236(B)(5)(d) sets out the factors. Among them: the length of the marriage, the income and property of each spouse at the time of marriage and at the time of the action, the age and health of both parties, each spouse’s contribution to acquiring the marital property including contributions as a homemaker, the loss of inheritance or pension rights, any award of maintenance, and the tax consequences to each party.
Marital fault is generally not a factor. Financial misconduct — dissipating assets, hiding accounts — is.
What about the house and the retirement accounts?
The marital residence is usually the largest asset and rarely divides cleanly. The options are sale and division of proceeds, a buyout by one spouse, or deferred sale — commonly until children finish school. Each carries different risk, and the agreement needs to address carrying costs and what happens if the plan fails.
Retirement assets divide by the marital portion. Pensions are typically valued using the Majauskas formula, and dividing a retirement plan usually requires a separate order.
Frequently asked questions
Does equitable distribution mean everything is split 50/50?
No. It means divided fairly based on statutory factors. Long marriages often approach an even split, but the court is not required to reach one.
Is the house automatically split in half?
No. The marital portion of its value is subject to distribution, and how that is realized — sale, buyout, or deferred sale — depends on the circumstances.
What happens to an inheritance I received during the marriage?
It is normally separate property and stays with you, unless it was mixed with marital assets. An inheritance deposited into a joint account may lose its separate character.
Does it matter who caused the divorce?
Generally not. Marital fault is not typically a distribution factor. Financial misconduct such as hiding or dissipating assets is.
Is my retirement account divided?
The portion that accrued during the marriage is subject to division. Pre-marital contributions and their growth are generally separate. Dividing the account usually requires a QDRO.
Related: No-Fault Divorce · Uncontested Divorce · Collaborative Divorce · back to Divorce
Written by Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539