US-New York

How is marital property divided in a New York divorce?

Equitable

Division standard

1980

Effective year

2 years

Statute of limitations for QDRO

All

Marital property includes

The Short Answer

New York divides marital property equitably—not necessarily equally—based on factors like length of marriage, income, and contributions to the marriage.

What the Law Says

New York follows equitable distribution—not community property—for dividing marital assets and debts upon divorce.

Marital property includes all assets and debts acquired by either spouse during the marriage, regardless of whose name is on the title. This includes wages, retirement accounts, real estate, businesses, and even debts like credit card balances.

Separate property—such as inheritances, gifts from third parties, or pre-marital assets—remains with the original owner, unless it has been commingled or transmuted into marital property.

The court considers thirteen statutory factors when deciding how to divide marital property fairly. These include the duration of the marriage, the age and health of both parties, income and earning capacity, contributions as a homemaker, and tax consequences.

Statutory Text
Except as provided in subdivision five of this part, the court shall set apart for each party his or her separate property, and shall distribute between the parties the marital property in an equitable manner.
— Domestic Relations Law § 236(B)(5)(a) — Equitable Distribution

Statutory Text
In determining an equitable disposition of property, the court shall consider: (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties...
— Domestic Relations Law § 236(B)(5)(d) — Factors for Equitable Distribution

What Courts Have Said

New York courts emphasize that 'equitable' does not mean 'equal'—fairness depends on the unique facts of each case.

O'Brien v. O'Brien

New York Court of Appeals · 1985

Held that a professional license earned during marriage is marital property subject to equitable distribution, even though it has no resale value.

Maloof v. Maloof

Appellate Division, Second Department · 2004

Affirmed that appreciation of separate property during marriage may become marital if active efforts by either spouse contributed to the increase in value.

What to Do

Identify all assets and debts acquired during the marriage—and document which are separate (e.g., pre-marital, inherited).

Gather financial records: pay stubs, tax returns, bank/retirement statements, deeds, business valuations.

File a Statement of Net Worth with the court and exchange financial disclosures with your spouse.

Negotiate a settlement or prepare for trial where a judge will apply DRL § 236(B)(5) factors to divide property.

If retirement benefits are involved, submit a Qualified Domestic Relations Order (QDRO) within 2 years after judgment to secure your share.

Sources

statuteDomestic Relations Law § 236(B)(5)(a) — Equitable Distribution statuteDomestic Relations Law § 236(B)(5)(d) — Factors for Equitable Distribution caseO'Brien v. O'Brien, 66 N.Y.2d 576 (1985)caseMaloof v. Maloof, 10 A.D.3d 639 (2d Dept. 2004)

Same Question, Other Jurisdictions

Not legal advice. This article is general information based on publicly available sources, written for educational purposes. Laws change and individual situations vary. Consult a licensed attorney in your jurisdiction before acting on anything you read here. Last reviewed: 2026-06-08.