Marital and Separate Property in a New York Divorce

In New York, separate property remains separate and marital property is divided equitably; a spouse’s enhanced earning capacity from a license or degree is not marital property, but contributions to it are weighed.

Separate property remains separate

The statute says separate property shall remain such (DRL 236(B)(5)(b)). Property a spouse had before the marriage, and property received by gift or inheritance, is generally separate property, and increases in its value due to the other spouse’s contributions can create marital interests.

Marital property

Property acquired during the marriage and before the start of the action is generally marital property, whoever holds title, including earnings, retirement contributions and assets bought during the marriage.

Enhanced earning capacity

The court shall not treat as marital property the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill or career enhancement, but it shall consider the direct or indirect contributions to developing it when distributing the marital property.

Pensions and insurance

The court considers the loss of inheritance and pension rights and of health insurance benefits upon dissolution.

Companion animals

In awarding possession of a companion animal, the court considers the animal’s best interest.

Keeping the right paperwork

Keep inherited and premarital funds in accounts in your name alone and keep records that show their source.

In the calculator

Enter premarital and inherited property as separate property in the New York property division calculator so it stays out of the division.

Frequently asked questions

Is premarital property divided in New York?

No, it generally stays separate, though marital contributions to it can create a marital interest.

Is a gift or inheritance divided in New York?

No. Property received by gift or inheritance is separate property.

Is a degree or license marital property in New York?

No. Enhanced earning capacity is not marital property, but contributions to it are considered.

Are pensions divided in New York?

The part earned during the marriage is marital property, and the loss of pension rights is a factor.

Who decides pet custody in a New York divorce?

The court considers the best interest of the companion animal.

Official sources

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This is general information, not legal advice. It is based on the cited New York statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed New York attorney.