Last Updated On: May 11, 2022

Is New York State A Community Property State?

We know that filing for a divorce can be complicated. Along with the emotional turbulence you may face are a number of other issues to consider. And one of the main questions during the legal separation from your spouse is what happens to your assets and property.


What Is New York Marital Property Law?

Every divorce is different and the property distribution may depend on many factors. But the NYC courts have certain guidelines to follow making decisions on the distribution of marital property.

New York is a non-community property state. Like another dozen states in the USA, NY follows the theory of equitable distribution. And while each spouse owns the income they earn during the marriage as well as the right to manage the property in their name, during the divorce one doesn’t simply get 50 % of the assets.


What Is Equitable Distribution Of Marital Property?

The term “equitable distribution” means the property will be distributed fairly between the two spouses. To determine the fairness of distribution during the legal separation, the court will take into account the following factors:

  • how long did the marriage last;
  • each partner’s conduct during the marriage;
  • the spouses’ health and age;
  • the spouses’ occupations and incomes;
  • the education, training, and skills of each spouse;
  • the spouses’ estate and liabilities;
  • the spouses’ likely financial needs;
  • the spouses’ ability to acquire assets and income in the future.


The court will also take into consideration whether the divorcing couple has children.


What Is The Difference Between Separate And Marital Property?

To distribute the assets fairly the law requires determining the separate and marital property of the couple. To do that the court will study the financial documents of both spouses.

The equitable distribution law of New York defines “marital property” as all property gained by both or either spouses during the marriage. This includes the property held in the names of both spouses as well as the one in the name of one spouse. Such property will be distributed during the divorce process.

  • The “separate property” which will not be distributed during the separation is the following:
  • the property acquired before the marriage;
  • the property acquired by will, devise, or as a gift from anyone besides the spouse;
  • the assets acquired as compensation of the personal injury;
  • the property acquired during the exchange of separate property or through an increase in value of that property
  • the property which was described as separate property in a written agreement by both spouses.

The spouse claiming that certain property or asset is a separate property should provide proof supporting the claim.




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