divide property

How Do You Fairly Divide Property in a Divorce?

Navigating the divorce process can be stressful for anyone, and the issue of asset division is at the forefront of that strife. Deciding who receives what family property, 401k savings plans, real estate investments, or business interests creates a situation that can easily spiral into contention.

Diving property in a divorce is much more than just trading off assets. Handles poorly, asset division can have long-lasting consequences. Even if it seems fair now, the situation could become quickly imbalanced later.

In this article, we explore various strategies couples can use to help them achieve an equitable division of marital assets in their divorce.

Explaining Equitable Property Division in a New York Divorce

U.S. states use various systems when dividing property in a divorce. In New York, courts rely on the equitable distribution model.

This system generally tries to divide the assets fairly, not necessarily equally. It isn’t concerned with who purchased or paid for which item. For instance, if one spouse primarily uses the car for work, errands, and childcare, the court is likely to allow them to keep that car. This spouse may not be required to owe the other anything for the vehicle.

Courts consider a variety of factors when deciding how to equitably divide property. They look at the length of the marriage, each spouse's contribution to the marriage, and each spouse’s economic circumstances following the divorce, and more.

Which Assets Are Subject to Division in a New York Divorce?

Equitable distribution applies only to marital property, which is any asset acquired during the marriage. Technically, marriage partners own this property equally, regardless of who originally purchased it or made the payments. This rule applies to anything from real estate to your record player.

Separate Property That Is Not Subject to Division

Separate property is any asset that belongs to you alone. Your spouse does not share any joint ownership of this property, so there should be no debate about who owns it during the divorce.

Examples include:

  • Property you owned before the marriage
  • Gifts from someone outside the marriage
  • Inheritances received during the marriage
  • Any property you specifically designated as separate in a marital agreement

Separate Property Becoming Co-Mingled with Marital Property

Sometimes, property starts as separate, but it gets mixed with the marital property. This is called “co-mingled” property.

Examples include:

  • A spouse inherits money, and they deposit it into a joint bank account.
  • A spouse uses funds from a joint bank account to make improvements on a separately owned property.
  • A spouse uses income from separate property investments to pay for marital expenses or purchase marital property.

In such cases, it becomes difficult to determine what portion of the asset is separate property and what portion is marital property. In a divorce, commingled property could be subject to division.

Options for Negotiating Fair Asset Division in a New York Divorce

It is not necessary to take all your property division concerns to court. Couples who are able to work together can find other ways to negotiate any outcomes. These conclusions include everything from child custody to the division of assets.

Here are some alternatives to allowing the state to decide your asset division in a divorce.


In this process, a neutral third party helps the couple reach a mutually agreeable settlement.


Arbitration also involves a neutral third party, but they make the final decision regarding property.

Collaborative Divorce

Each spouse hires their own attorney, but no one is trying to “win.” All parties commit to working together and resolving the case outside of court.

Protecting Your Rights When Your Spouse Contests Asset Division

Unfortunately, divorcing couples often cannot work together to reach a satisfying conclusion. If your spouse contests the division of assets, you must protect yourself.

When this is the case, follow these steps:

  1. Hire an attorney who can represent your interests in court.
  2. Keep detailed records of all assets and their value
  3. Document any evidence that supports your claim to certain assets. This includes documents that show the origin of the asset, making it separate. It also includes your claim to marital assets, such as your contribution to or use of that asset.

You should fight for what is yours. With the right preparation and legal support, you can make sure your rights are protected and move forward confidently.

Law Office of Tzvi Y. Hagler, P.C. is here to help you protect the property you are entitled to. If you’re ready for legal guidance, contact our team online or call us directly at (516) 514-3868.