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Division of Debts and Assets in a New York Divorce

New York is an "Equitable Distribution" State

In Westchester County, as is the case in all counties in New York, the Court determines how to distribute the marital assets and marital debts of the spouses in a manner that is fair and equitable. This concept is referred to as "Equitable Distribution."

The most important factor to remember is that because New York is an "equitable distribution state" the court may not necessarily divide the marital property and debts equally between the spouses because the goal is not an even, 50/50 division, but rather a fair or "equitable" division after the court considers all of the factors of the marriage.

Modern marriages should be viewed as a partnership of co-equals. Upon the dissolution of a marriage, there should be equitable distribution of all family assets accumulated during the marriage and maintenance (alimony) should rest on the economic basis of reasonable needs and the ability to pay. From this point of view the contributions of each partner to the marriage should ordinarily be regarded as equal and there should be an equal division of family assets unless such a division would be inequitable under the circumstances of a particular case. For assistance, speak with our Westchester County equitable distribution attorneys at Proto, Sachs & Brown, LLP!

Factors that may be considered include, but are not limited to:

  • Length of the parties' marriage
  • Health and age of both parties
  • Income of each party at the time of marriage
  • Income and property of each party at the time of the commencement of the divorce
  • Need of a custodial parent to occupy or own the marital residence and to use or own its household effects
  • Loss of inheritance and pension rights upon dissolution of the marriage as of the date of the dissolution of the marriage
  • Loss of health insurance benefits upon dissolution of the marriage
  • Any award of maintenance (spousal support) to one spouse
  • Liquid or non-liquid character of all marital property
  • Probable future financial circumstances of each party
  • Impossibility or difficulty of evaluating any component asset or any interest in a business
  • Tax consequences to each party
  • Wasteful dissipation of marital assets by either party
  • Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration
  • Any other factor which the court expressly finds to be just and proper

Assets and Debts Included in Equitable Distribution

Marital Property

Equitable distribution law provides that all property acquired by either or both spouses during the parties' marriage until the date of the commencement of the divorce action shall be considered "marital property," regardless of whose name the property is in, and shall be subject to equitable distribution by the court.

Any debt that was acquired by either or both spouses during the parties' marriage up until the date of the commencement of the divorce shall be considered "marital debt." All marital debt shall be subject to equitable distribution by the court.

Examples of marital property include:

  • Real property (regardless of whose name is on the title or deed)
  • Bank accounts (regardless of whose name the account is in)
  • Income of each party
  • Bonuses
  • Educational degrees
  • Jewelry
  • Tax shelters
  • Wedding gifts
  • Gifts exchanged between spouses
  • Personal property such as home furnishings
  • Investments
  • Professional licenses
  • Interest in a business
  • Vested and matured pension rights
  • Vested but un-matured pension rights
  • Non-vested pension rights
  • Profit sharing, retirement and savings plans

What is considered "separate property?"

Separate property is property acquired before the marriage or property acquired by bequest, devise or descent or gift from a party other than the spouse. It also includes property acquired in exchange for or the increase in value of separate property except to the extent that such appreciation is due in part to the contributions of the other spouse. All property and debt which is not considered either "marital property" or "marital debt" is considered "separate property" or a "separate debt" and is not subject to Equitable Distribution by the Court.

Thus, the separate property or debts of one spouse shall remain to be the separate property or debt of that spouse.

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