NEW YORK, NY – September 10, 2026 – Spouses ending a marriage in New York often assume their property will be split evenly, but the state follows a different legal standard. Manhattan property division attorney Richard Roman Shum of the Law Office of Richard Roman Shum, Esq. (https://www.romanshum.com/blog/is-new-york-a-community-property-state-for-divorce/) has published guidance clarifying that New York is not a community property state and instead divides marital assets and debts through equitable distribution.

According to Manhattan property division attorney Richard Roman Shum, equitable distribution means marital property is divided fairly under the circumstances rather than through an automatic 50/50 share. “Many people believe everything gets split down the middle, but New York courts look at the full picture of the marriage before dividing assets,” Shum explains. When spouses cannot reach an agreement, a judge weighs statutory factors before dividing major assets such as the marital home, retirement accounts, business interests, or marital debt.

Manhattan property division attorney Richard Roman Shum notes that the framework for these decisions comes from Domestic Relations Law § 236(B), which defines marital and separate property and identifies the factors courts must consider. Marital property generally includes any property acquired by either spouse during the marriage, regardless of how it is titled. This can encompass the marital home, retirement accounts and pensions, bank and brokerage accounts, business interests, and vehicles acquired during the marriage.

Separate property, by contrast, includes assets owned before the marriage, as well as inheritances, gifts from someone other than the spouse, and compensation for personal injuries. Shum points out that separate property usually remains with the owning spouse, but complications arise when assets are mixed together. “Commingling separate funds with marital accounts can change their legal status or make them much harder to trace,” he observes. “Keeping thorough financial records is one of the most effective ways to establish that an asset should remain separate.”

In determining what is equitable, courts consider numerous factors under Domestic Relations Law § 236(B)(5)(d), including the income and property of each spouse, the length of the marriage, the age and health of the parties, and the contributions one spouse made to the other’s career or earning potential. Judges may also consider any wasteful dissipation of assets, the tax consequences of a division, and the difficulty of valuing certain holdings such as a closely held business. When a straightforward division is not feasible, the court may order a distributive award, a monetary payment designed to compensate for assets that cannot be physically divided.

Shum emphasizes that retirement benefits earned during the marriage are generally considered marital property. In Majauskas v. Majauskas, 61 NY2d 481 (1984), the New York Court of Appeals established that retirement benefits accrued during the marriage form part of the marital estate. Defined-benefit pensions and defined-contribution plans such as a 401(k) are typically divided through a Qualified Domestic Relations Order, a separate court order that directs the plan administrator to assign a portion of the benefits to the other spouse. “A properly drafted order can help preserve tax treatment and avoid early-withdrawal penalties, but it must meet the plan’s specific requirements before it takes effect,” Shum adds.

Marital debts are divided under the same equitable distribution principle. Attorney Shum notes that debts tied to a specific asset, such as a mortgage or car loan, generally stay with the asset, while unsecured debts like credit card balances are apportioned separately. He cautions that creditors are not bound by a divorce decree, meaning a lender may still pursue whoever signed the original agreement even after a court assigns the debt to the other spouse.

The marital home is often both the most valuable and the most emotionally significant asset in a divorce. Shum explains that common outcomes include one spouse buying out the other’s share, selling the home and dividing the proceeds, or allowing a custodial parent to remain temporarily so children can maintain stability. Spouses may also resolve these matters on their own through a marital settlement agreement, and New York courts will enforce properly executed prenuptial and postnuptial agreements that meet the formal requirements of the statute.

The firm assists clients throughout Manhattan and New York City, handling negotiations and, when necessary, litigation in the New York County Supreme Court. Attorney Shum identifies every asset and debt, gathers financial records, values complicated holdings, and helps trace the origins of property claimed as separate.

For individuals facing divorce, consulting a property division attorney early may help evaluate options, organize financial information, and work toward a fair resolution under New York’s equitable distribution laws.

About Law Office of Richard Roman Shum, Esq.:

The Law Office of Richard Roman Shum, Esq. is a Manhattan-based firm focused on family law and property division matters throughout New York City. Led by attorney Richard Roman Shum, the firm represents clients in equitable distribution disputes involving marital homes, retirement accounts, business interests, and other significant assets. For consultations, call (646) 259-3416.

 

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