At such a tough time as the break-down of a marriage, it is difficult to get agreement on anything, let alone on permanently separating. That’s where a Family Law firm like Gavenda Law can compassionately advise and support you, concerned with protecting your best interests.

So it’s helpful to learn that only your "marital property" will be shared under New York's equitable distribution laws upon your divorce. This means that any separate property you and your spouse brought into the marriage will continue under your ownership.

Separate property” in the state of New York includes property:

• gathered by one spouse prior to the marriage
• awarded as compensation for personal injury
• an inheritance or gift by one spouse
• declared in a prenuptial agreement

Any assets obtained during the marriage are considered ‘marital property’, regardless of who owns the title. This may include both couples' income, purchases made with that money, and retirement benefits, with a few restrictions.

Does New York Consider Marital Property as Communal Property?


New York is an equitable distribution state, meaning that property is divided in a fair and reasonable manner. So no, it’s not considered the same thing as communal property, which has only been implemented in a few states, while most are shifting to equitable or fair distribution.

The Uniform Marital Property Act of 1983 mandated the division of assets through community property. This made property distribution simpler upon divorce because even residences were split 50/50. However, just 9 of the 50 states use this approach, indicating that the communal option it is fast becoming obsolete.

When it comes to choosing who receives whose assets, the courts have a lot of leeway.

New York is a state with a fair distribution of wealth. This means that property split is handled in a way that is judged "most equitable" to both parties following a divorce. This differs from a community property state, where marital property is shared 50/50 between spouses. The court considers issues such as the marriage and each party's contributions. When it comes to choosing who receives whose assets, the courts have a lot of leeway.

Washington Capital building.

How Property is Divided

A thorough appraisal is required to guarantee that your assets are split equitably. It will also be important to identify the assets, if any, one party possessed prior to the marriage.

These are both significant factors.

Vehicles, houses, jewels, antiques, art, companies, retirement accounts, and investment accounts are all examples of assets.

The following factors will be considered by the court during the equitable distribution phase of your divorce:

• The overall length of the couple's marriage
• Each spouse's income and property
• Both spouses' wishes regarding certain assets
• The liquid and non-liquid nature of the property involved
• Any wasteful dissipation of assets prior to divorce
• Each spouse's non-financial contributions
• Both spouses' age, health, and earning capacity
• If spousal support was awarded.

If possible, you can always divide the property yourselves

Here are some steps to get you started if you and your spouse choose to split your property on your own:

  • Make a list of everything you own. (Make a list of all the objects you and your partner possess together. Of course, you can leave out anything that both of you feel are minor personal items.)

  • Decide who should be the logical owner. (Now go over your main list item by item, deciding if there is a good reason for each piece of property to belong to one of you or the other. Start with the objects with the highest worth and see how far you can go.)

  • Obtain the judge's blessing. (If you and your spouse can agree on how to divide the property you own jointly, the court is likely to approve your arrangement. The sole exception is where a non-lawyer party appears to have consented to take far less than half of the property.)

  • Set the property worth. (Try to come to an agreement on the value of anything worth more than a certain amount, such as $100 or $500. If there's a property, a business, or anything else that's tough to value, seek an assessment from a trusted third party.)

In the event that your relationship has irretrievably broken down such that you need the intervention of a lawyer, and possibly the courts, we encourage you to give us a call at Gavenda Law for a free, 30-minute consultation with Mr. Gavenda about your situation. He will answer your questions and advise you on the best course of action going forward. You need to protect yourself and your personal interests while exiting a broken relationship. Mr. Gavenda and his staff can help you get what you are entitled to through your pending divorce. We know the divorce process inside and out and know how to support you through the process.

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