New York Marital Property Laws
A lot of what is published about New York marital property is out of date, and one piece of it is badly out of date. Domestic Relations Law §236(B)(5)(d)(7) now reads, in terms: “The court shall not consider as marital property subject to distribution the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement.” New York was once the jurisdiction most associated with dividing the value of a professional licence. It no longer does that. Contributions to the development of the other spouse’s earning capacity are still weighed — the same subparagraph says so — but the licence itself is off the distribution table. This page works through what §236 Part B actually provides now, including the automatic orders that bind both spouses from the day a summons is filed. We research public records under a permissible purpose; nobody here is a licensed private investigator and no such licence is claimed. General information about New York law, not legal advice.
The Short Version
New York is an equitable-distribution state and expressly not a title state: DRL §236(B)(1)(c) defines marital property as everything acquired by either or both spouses during the marriage and before a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held. Separate property remains separate under §236(B)(5)(b), and §236(B)(1)(d) defines it to include pre-marital property, third-party gifts, bequests, devises and descent, compensation for personal injuries, and the increase in value of separate property — except to the extent that appreciation is due in part to the contributions or efforts of the other spouse. Marital property is then distributed equitably after weighing sixteen statutory factors, and under §236(B)(5)(g) the court must set out the factors it considered and its reasons, which cannot be waived. Two mechanisms drive what an asset search has to produce: the automatic orders that bind both spouses from the moment the summons is filed, and the court’s power under §236(B)(4)(b) to set a valuation date for each asset, anywhere between commencement and trial. We supply the factual record. Characterisation, valuation and division belong to the court and counsel. This page is general information, not legal advice.
The Licence Rule Is Not the Law Any More
§236(B)(5)(d)(7), as the section now reads.
For a long stretch New York was the jurisdiction people cited when they wanted to say that a professional licence or degree could itself be marital property, valued as a stream of enhanced future earnings and divided. A great deal of material online still describes that as New York law — including pages currently ranking for searches about licences in divorce. The statute has moved on.
Factor (7) of §236(B)(5)(d) begins where it always did, directing the court to weigh any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. Then it adds two sentences that reverse the old position:
“The court shall not consider as marital property subject to distribution the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse.”
Read both sentences together, because the second is doing as much work as the first. The value of the licence is out — there is no asset to appraise and no share of it to award. What survives is the contribution: what the other spouse put in, directly or indirectly, while that earning capacity was being built, weighed as part of dividing the property that does exist. That is a different evidentiary exercise. It is not an expert valuation of a future income stream; it is a factual account of who paid for what, who moved where, who worked which job, over which years. Much of that leaves a documentary trail — addresses and their dates, property acquired and disposed of, entities formed — and much of it does not. We are clear about which is which.
A second thing worth checking against any secondary source you read: several pages ranking for New York equitable distribution state that the court weighs fourteen factors, and at least one places them in §236(B)(6). The property factors are in §236(B)(5)(d), §236(B)(6) is post-divorce maintenance, and the enacted list now runs to sixteen subparagraphs — the later additions covering domestic violence and, at (15), the best interest of a companion animal.
Six Orders That Bind From the Day of Filing
§236(B)(2)(b) — no motion, no hearing, no judicial discretion.
New York does not make a spouse apply for a freeze. The automatic orders are served with the summons; they bind the plaintiff immediately upon filing the summons or summons and complaint, and the defendant immediately upon service of the orders with it. They stay in force until the judgment of divorce is entered or the action is dismissed, discontinued or stayed, unless a court modifies them or the parties agree otherwise in a writing duly executed and acknowledged.
| Order | What it restrains | The exception |
|---|---|---|
| (1) Property | Selling, transferring, encumbering, concealing, assigning, removing or in any way disposing of any property — real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats — held individually or jointly. Concealment named | Written consent, a court order, the usual course of business, customary household expenses, or reasonable attorney’s fees in the action. |
| (2) Retirement | Transferring, encumbering, assigning, removing or withdrawing tax-deferred funds, stocks or assets in an IRA, 401(k), profit sharing plan, Keogh or any other pension or retirement account — and applying for or requesting retirement or annuity payments. | Written consent or further court order. |
| (3) Credit | Taking cash advances against credit cards. | The usual course of business, customary or usual household expenses, or reasonable attorney’s fees in the action. |
| (4) Health cover | Causing the other party or the children to be removed from existing medical, hospital and dental insurance; each party must keep that coverage in force. | None stated. |
| (5) Life and property cover | Changing the beneficiaries of existing life insurance policies; each party must maintain existing life, automobile, homeowners and renters policies. | None stated. |
| (6) Notice duty | This one is affirmative: on notice of a tax lien, foreclosure, bankruptcy or litigation, or the filing of any of those, or the lifting of a stay in bankruptcy, that could adversely affect the marital estate, that party must give written notice to the other within ten days. | None — it is a duty, not a prohibition. |
Order (6) is the one to notice if you are assembling a picture of a New York estate. Tax liens, foreclosure filings, bankruptcy petitions and civil litigation are all matters of public record, and they all carry dates. A ten-day notice duty means the question “when did the other side learn of this” has a documentary answer sitting in a court or county index. Order (1) is worth noticing too: it names concealing alongside selling and transferring, which is unusual drafting and squarely on point for the kind of work described here.
Watch: New York Asset Research
Automatic orders, valuation dates, and what a record has to show.
Watch Overview
Marital, Separate, and the Appreciation Carve-Out
§236(B)(1)(c) and (1)(d).
Marital property is everything acquired by either or both spouses during the marriage and before a separation agreement is executed or a matrimonial action commenced — regardless of the form in which title is held. That phrase is the reason New York is not a title state, and it is why a solely-titled account, deed or entity interest proves nothing on its own about classification.
Separate property is defined in four clauses, and two of them repay a close reading. Clause (2) makes compensation for personal injuries separate property outright — a category several states handle by a more complicated analytic split. Clause (3) covers property acquired in exchange for separate property, and the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse. That exception is the whole ballgame in a contested New York case involving a business or a long-held property.
It also places New York precisely between its neighbours, which is worth knowing if a matter crosses a state line. In Pennsylvania the increase in value of non-marital property is marital as a matter of definition. In Illinois that appreciation is non-marital whatever caused it, with a reimbursement claim instead. New York splits the difference by statute: passive appreciation stays separate, appreciation attributable in part to the other spouse’s contributions or efforts does not. So in a New York file the question is not simply “how much did it grow” but “what did the other spouse do while it was growing” — and the evidence for the second half is largely a chronology of activity, roles and dates. Community-property states such as California, which divides marital property from an entirely different starting premise, produce different answers again, and our marital property laws by state overview maps the whole picture.
Clause (1) covers property acquired before marriage or by bequest, devise, descent or gift from a party other than the spouse — note the exclusion of interspousal gifts from that safe harbour — and clause (4) covers property described as separate in a written agreement under §236(B)(3). Such an agreement, made before or during the marriage, is valid in a matrimonial action only if it is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. That is a formality with a documentary answer, and it is one of the first things worth checking.
What New York Compels, and When It Is Measured
§236(B)(4) — disclosure without special circumstances, valuation asset by asset.
Sworn statement of net worth
Due within twenty days of a written demand, or filed with the clerk within ten days after joinder of issue if none is demanded.
No special circumstances needed
Disclosure is compulsory wherever alimony, maintenance or support is in issue; nobody has to justify asking for it.
Three years of transfers
The statement must list all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever is shorter.
One narrow exception
Routine-course-of-business exchanges of substantially equivalent value need not be itemised — but only where those assets are otherwise identified in the statement.
Everywhere situated
Net worth covers all income and assets “of whatsoever kind and nature and wherever situated” — out-of-state and offshore holdings included.
A date for every asset
Under §236(B)(4)(b) the court sets the valuation date for each asset, anywhere from commencement to trial. New York can have several.
The three-year transfer list is the provision most directly relevant to what we do. It is a statutory instruction to account for what has left, not only for what remains — and recorded conveyances, entity filings, lien and judgment entries and registration records are exactly the sort of thing that can corroborate or contradict such a list, because each carries a date on its face. Noncompliance with the disclosure obligation is punishable by any or all of the penalties prescribed in CPLR 3126, in examination before or during trial.
The per-asset valuation power in §236(B)(4)(b) is the other half. Because the court fixes a date for each asset rather than one date for the estate, a New York file can need a value for a business at one point and a value for a property at another. That makes the underlying records — recorded consideration, assessment history, the sequence of filings — more useful than a single current snapshot, and it is one of the reasons this state’s work resembles a chronology more than an inventory. Tracing what an asset came from and when is the same discipline behind any serious search for hidden assets.
Sixteen Factors, and Findings That Cannot Be Waived
§236(B)(5)(d) and (5)(g).
Once classification is settled, §236(B)(5)(c) requires marital property to be distributed equitably considering the circumstances of the case and of the parties, and paragraph (d) supplies the sixteen factors. The first eleven are familiar in shape: income and property of each party at marriage and at commencement; duration of the marriage and the age and health of both; the need of a custodial parent to occupy or own the marital residence and its household effects; loss of inheritance and pension rights on dissolution; loss of health insurance benefits; any maintenance award; the equitable-claim-and-contribution factor discussed above; the liquid or non-liquid character of the property; each party’s probable future financial circumstances; the impossibility or difficulty of evaluating a component asset or an interest in a business, corporation or profession together with the economic desirability of keeping it intact and free from the other party’s claim or interference; and tax consequences.
The last five are where New York’s particular concerns show. Factor (12) is the wasteful dissipation of assets by either spouse. Factor (13) is any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration — note that it reaches back before filing, so it covers ground the automatic orders cannot. Factor (14) asks whether either party has committed an act or acts of domestic violence as described in Social Services Law §459-a(1) against the other, and the nature, extent, duration and impact of those acts. Factor (15) directs the court, in awarding possession of a companion animal, to consider the best interest of the animal. Factor (16) is a catch-all for any other factor the court expressly finds just and proper.
Factor (13) deserves a second look from anyone building a record. “In contemplation of a matrimonial action” and “without fair consideration” are both factual questions with documentary answers: when an instrument was recorded relative to other events, and what consideration it recites. Neither is a matter of opinion, and both sit in indexes that can be searched by name and by date.
Finally, §236(B)(5)(g) requires the court, in any decision under this subdivision, to set forth the factors it considered and the reasons for its decision — and provides that this may not be waived by either party or counsel. A New York equitable-distribution decision has to show its working. Where distribution would be impractical or burdensome, or where distributing an interest in a business, corporation or profession would be contrary to law, §236(B)(5)(e) directs the court to make a distributive award instead, defined in §236(B)(1)(b) as a payment in lieu of or to supplement, facilitate or effectuate a division, payable in a lump sum or over time in fixed amounts, and expressly excluding payments treated as ordinary income to the recipient under the Internal Revenue Code. Separately, §236(B)(5)(f) lets the court make orders about use and occupancy of the marital home and its household effects under DRL §234 without regard to the form of ownership. Where a retirement interest has to be moved after all this, the mechanism for a private-sector plan is federal — a qualified domestic relations order under 29 U.S.C. §1056(d)(3).
What We Produce, and Where We Stop
Records with dates on them; nothing dressed up as a conclusion.
Identify
Recorded real property, business entities, titled vehicles and vessels, recorded liens and judgments — in New York and in any other state or jurisdiction either spouse has touched.
Date and sequence
Recording dates, formation and amendment filings, lien entries, court index entries — placed in order, because factor (13) and order (6) are both about timing.
Corroborate what left
Set the disclosed three-year transfer list against what the record actually shows was conveyed, encumbered or dissolved, and note the differences without characterising them.
Source everything
Each line cited to the index or instrument it came from, so counsel can pull it, and each gap marked as a gap.
We decide nothing. Whether an asset is marital or separate, whether appreciation was due in part to the other spouse’s contributions or efforts, what a closely held interest is worth on a court-set valuation date, whether a transfer was made in contemplation of the action without fair consideration, and how sixteen factors resolve into a distribution — those belong to the court, to counsel and to their valuation experts. Our output is the evidentiary layer beneath them, and its usefulness depends on being conservative: a sourced gap is worth more in a New York courtroom than a confident inference.
The boundaries are stated before any work begins. The purpose has to be one the law permits and it is confirmed at the outset; the sources are public records and lawfully licensed data. We will not pretext, will not impersonate a party or an institution, and will not open a private financial account or read its contents. And some requests we decline: factor (14) puts domestic violence in front of the New York court for a reason, and where what is really being sought is the location of a spouse who has left after abuse, or of a person protected by a New York order of protection, we stop there. Safety is not something a distribution argument gets to outweigh.
Who Sends Us New York Matters
Matrimonial files where the estate is contested.
Matrimonial Counsel
Net-worth statement corroboration
Forensic Accountants
Transfer history against the disclosure
Business Appraisers
Ownership and formation groundwork
Mediators and Neutrals
One shared chronology
Spouses
A record they can check themselves
Trust and Estate Counsel
Bequest, devise and descent tracing
The request is usually the same whoever sends it: establish what exists, put a date on each item, and set it against what has been disclosed — without editorialising about what the difference means. New York households frequently hold property in other states, and the answer changes at the border, so our pages on Connecticut marital property law and on how Florida treats marital property are worth reading alongside this one. Where the question shifts from dividing an estate to enforcing against one, the rules change completely, and those are covered separately under New York asset exemptions from creditors and New York wage garnishment laws. Our skip tracing services page sets out the wider range.
What We Commit To
New York statutes change, and stale summaries of them stay online for years. So we work from the enacted text, we say which provision each statement comes from, and we date what we hand over. Where a record is silent, that is what we report. Since 2004 the method has been constant: a purpose the law permits, stated up front; public and lawfully licensed records; no impersonation; nothing taken from inside a private account.
New York Marital Property Questions
Is a professional licence or degree still marital property in New York?
No. Domestic Relations Law section 236(B)(5)(d)(7) now provides that the court shall not consider as marital property subject to distribution the value of a spouse’s enhanced earning capacity arising from a licence, degree, celebrity goodwill, or career enhancement. The same subparagraph goes on to say that in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions made during the marriage to the development of the other spouse’s enhanced earning capacity. The value is out; the contribution still counts.
Is New York a title state?
No, and the statute says so directly. Section 236(B)(1)(c) defines marital property as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held. Whose name appears on a deed or an account does not settle whether the asset is marital.
What are the automatic orders?
Six restraints in section 236(B)(2)(b), served with the summons, binding on the plaintiff on filing and on the defendant on service, and in force until judgment or until the action is dismissed, discontinued or stayed. They restrain disposing of property, restrain touching retirement accounts and applying for retirement benefits, restrain cash advances on credit cards, protect existing health cover and life insurance beneficiary designations, and require ten days’ written notice to the other party of a tax lien, foreclosure, bankruptcy or litigation that could adversely affect the marital estate.
Is the growth in value of separate property divided?
It depends on what caused the growth. Section 236(B)(1)(d)(3) treats the increase in value of separate property as separate, except to the extent that the appreciation is due in part to the contributions or efforts of the other spouse. That statutory carve-out is why New York cases about a business or a long-held property turn on what the other spouse actually did during the marriage, not simply on the size of the increase.
When are assets valued?
There is no single date. Under section 236(B)(4)(b), as soon as practicable after commencement the court sets the date or dates the parties are to use for the valuation of each asset, and those dates may be anytime from the date of commencement of the action to the date of trial. One New York case can therefore carry several valuation dates.
How far back does financial disclosure reach?
The sworn statement of net worth required by section 236(B)(4)(a) must include a list of all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever is shorter. Routine-course-of-business exchanges of substantially equivalent value need not be itemised where those assets are otherwise identified. Noncompliance is punishable by any or all of the penalties prescribed in CPLR 3126.
How many factors does the court weigh?
Sixteen, listed in section 236(B)(5)(d). Several widely circulated summaries still say fourteen, and at least one puts them in section 236(B)(6), which is post-divorce maintenance rather than property. The list now includes wasteful dissipation, any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration, domestic violence, and the best interest of a companion animal. Under section 236(B)(5)(g) the court must set out the factors it considered and its reasons, and that requirement cannot be waived by either party or counsel.
What can you establish, and how quickly?
Recorded real property and the instruments behind it, recorded liens, judgments and other encumbrances with the party currently holding each, business entities and their formation and amendment filings, titled vehicles, vessels and aircraft, and a date for every entry, in New York and beyond it. Private account contents are outside what we do and we do not pretext to reach them. A workable request usually gets a first read back within 24 hours, sourced entry by entry, with any silence in the record reported as silence. General information about New York law, not legal advice.
Check It Against the Record
New York compels a three-year transfer list and values assets one date at a time. Give us the parties, the county and the lawful purpose behind the request, and we will set the record against the disclosure — usually a first read back within 24 hours. Contact us to begin.
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