New York is an equitable distribution state so there are no hard-and-fast rules dictating how courts will distribute property in a divorce. Unlike in community property states where courts are obligated to split marital assets 50/50 between spouses, equitable distribution states give judges discretion to rule in a way they think is fair. Article 13, Section 236 of the Consolidated Laws of New York lists 13 separate factors judges can consider when dividing property, but these factors are only statutory guidelines. They're not rules.
Increases in Earnings
The first factor in Section 236 advises judges to compare what spouses were earning at the time they married against what they're earning at the time they file for divorce. After only a few years of marriage, the difference might not be much. After 20 years of marriage, however, it could be far greater, especially if one spouse devoted time to child-rearing and the home while the other concentrated on career advancement. The law allows New York judges to give less than 50 percent of a couple's property to the spouse whose earnings have increased the most because that spouse can more easily replace the property awarded to the other.
Reliance on the Marital Partnership
The second factor in Section 236 specifically addresses the length of a marriage. After short-term marriages, New York judges tend to restore spouses to the financial condition they were in before they wed. This might result in an uneven division if one spouse contributed financially more to marital property because he brought more income into the marriage. After long-term marriages, spouses are more likely to have spent years relying on each other financially. The second factor allows judges to divide property 50/50 after longer marriages, so spouses equally share everything they acquired together over the years.
Likelihood of Future Employment
The eighth factor advises New York judges to take an educated guess at what each spouse will be able to earn going forward, after the divorce. After a long-term marriage, if one spouse has rarely or never worked because she was taking care of the home, she will be less likely to qualify for a high-paying job post-divorce and won't be able to replace property awarded to her spouse. Equitable distribution law allows a judge to award her more marital property to compensate for that. For example, a judge might give her the marital home because she's not likely to be able to afford a home post-divorce on her own.
Impact of Spousal Support
An award of spousal support or alimony can also affect a judge's decision regarding property division. If a spouse is receiving alimony, this might lessen her need for certain marital assets that would produce income, such as rental property or an investment account. Alimony is more likely to be awarded after longer marriages.
The last factor listed in Article 13, Section 236 of the Consolidated Laws of New York, is the one that can make property division uncertain for divorcing couples. It refers directly to the concept of equitable distribution, stating that a judge can weigh any additional factors he feels are important to making a "just and proper" decision. This intangible can sway a judge's decision, regardless of how long a divorcing couple was married.