In New York the marital property will be distributed 'equitably'. The process includes:
- identifying marital and separate property
- valuing each separate and marital asset
- distributing of the assets
- acquired by either or both spouses during the marriage (before the execution of a separation agreement or the commencement of an action)
- regardless of the form in which title is held,
- except as otherwise provided in a valid agreement (pre/post-nuptial)
- acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
- compensation for personal injuries;
- 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 or efforts of the other spouse.
- property described as separate property by written agreement of the parties
Appreciation of Separate Property
Contributions of non-title spouse
Transmutation and Commingling
When equitable distribution is appropriate but would be impractical or burdensome or where the distribution of an interest in a business, corporation or profession the court or an agreement between the parties may call for a distributive award in order to achieve equity between the parties.
The courts include mandatory 'automatic orders' upon filing for divorce, essentially forbidding the parties from making any financial decisions, or insurance (health, life, property etc.,) related decisions that are not within the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with the divorce.
Agreement of the parties
An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.
Equitable Disposition of Property factors:
(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;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) the loss of health insurance benefits upon dissolution of the marriage;
(6) any award of maintenance under subdivision six of this part;
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse;
(8) the liquid or non-liquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(14) any other factor which the court shall expressly find to be just and proper.