Essentially, all marital property is distributed via "equitable distribution." Property is classified as either "separate" or "marital." New York State Domestic Relations Law defines separate property as (1) property acquired by the other party prior to the marriage; (2) property acquired by the other party by bequest, devise, descent or gift from a party other than the spouse; (3) property acquired by the other party as a result of compensation for personal injuries, and; (4) property acquired in exchange for or the increased value of separate property (non-marital property), except to the extent that such appreciation is due to the contributions and efforts of the other spouse. . Separate property is not subject to equitable distribution between divorcing or separating parties.

Equitable distribution of marital assets and liabilities does not mean an equal division and the Domestic Relations Law sets forth a number of factors that should be considered by the parties or a court in determining what constitutes what is equitable. This not an exact science. The factors include:

  • The income and property of the spouses, including any marital property divided as a result of the dissolution of marriage
  • If there has been any transfer of property made in anticipation of divorce
  • duration of the marriage
  • Any wasteful dissipation of marital property by a party
  • The contributions of each spouse to the marriage and the career of the other spouse, including services rendered in homemaking, childcare, education, and career-building of the other spouse.
  • The tax consequences to each spouse
  • Any custodial and child support responsibilities
  • The ability of the spouse seeking support to become self-supporting and the time and training necessary
  • Any reduced lifetime earning capacity as the result of having foregone or delayed education, training, employment, or career opportunities during the marriage
  • whether the spouse from whom maintenance is sought has sufficient property and income to provide maintenance for the other spouse
  • The age and health of both spouses
  • The present and future earning capacities of both spouses
  • Any other factors the court deems just and equitable
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