New York Divorce Property Division — Equitable Distribution Explained (2026)

New York divides marital property through equitable distribution. Here's how it works.

Equitable Distribution in New York

New York Domestic Relations Law § 236(B) requires courts to distribute marital property equitably — fairly, but not necessarily equally. Courts consider all relevant circumstances.

In an agreed divorce, you set your own terms. Courts approve any reasonable voluntary agreement. Equitable distribution factors matter primarily when you can't agree and need a judge to decide.

Marital vs. Separate Property

Marital property:

  • Acquired by either spouse during the marriage (regardless of title)
  • Income earned during the marriage
  • Retirement contributions during the marriage
  • Appreciation of marital property
  • Businesses started or significantly grown during the marriage

Separate property:

  • Owned before marriage
  • Inherited during marriage (even if inherited from a spouse)
  • Received as a gift from a third party during marriage
  • Compensation for personal injuries (pain and suffering portion)
  • Property designated separate by prenuptial or postnuptial agreement
  • Property acquired with separate property proceeds

Appreciation of separate property: Under New York law, passive appreciation of separate property (market-driven increase in value) generally remains separate. Active appreciation (due to efforts of either spouse or marital funds) may be marital. This matters for homes, businesses, and investment accounts owned before marriage.

New York Equitable Distribution Factors

Courts consider all relevant circumstances including:

  • Income and property of each spouse at time of marriage and at divorce
  • Duration of the marriage
  • Age and health of both spouses
  • Need of custodial parent to occupy the marital home
  • Loss of inheritance and pension rights
  • Any maintenance award
  • Contributions to career or education of other spouse
  • Liquid vs. non-liquid nature of assets
  • Probable future financial circumstances
  • Difficulty of evaluating business or professional practice
  • Tax consequences to each party
  • Any wasteful dissipation of assets
  • Transfer or encumbrance of assets in contemplation of divorce
  • Any other relevant factors

Maintenance (Spousal Support) in New York

New York uses "maintenance" (not alimony). Key points:

  • Either spouse can request maintenance
  • Courts use a formula for calculating temporary maintenance
  • Duration based on marriage length guidelines
  • In an agreed divorce, spouses can waive maintenance entirely or agree to any terms
  • Include a clear maintenance waiver if neither is requesting it: "Each party waives any right to maintenance, past, present, and future."

Retirement Accounts

Retirement contributions during the marriage are marital property. The Majauskas formula (from the New York case Majauskas v. Majauskas) is used to divide defined benefit pension plans in New York — it calculates the marital portion as the months of service during the marriage divided by total months of service.

For 401(k) and similar defined contribution plans, division is typically by a percentage of the account balance as of a specific date.

All employer plans require a QDRO after the divorce is final. Engage a QDRO specialist — the Majauskas formula and New York-specific pension requirements make this more complex than other states.

FAQ

What is the Majauskas formula? It's the New York standard for dividing defined benefit pension plans in divorce. It calculates the marital share as a fraction based on how much of the pension was earned during the marriage. Named from the 1984 Court of Appeals case Majauskas v. Majauskas.

What if my spouse is a New York City public employee (NYPD, FDNY, teacher)? NYC has multiple public pension systems (NYCERS, TRS, BERS, Police Pension, Fire Pension). Each has specific requirements for QDRO-equivalent orders. Contact the specific pension system before finalizing your Stipulation.

Does New York recognize common-law marriage? No. New York does not recognize common-law marriage formed in New York. However, if you formed a valid common-law marriage in a state that recognizes it and then moved to New York, New York will recognize your marriage.

Last reviewed: March 2026

Last reviewed: March 2026 · Verify current fees and forms with your local court before filing.