In New York, marital property is everything acquired by either spouse during the marriage, while separate property includes assets owned before marriage, inheritances, and personal-injury awards. Under N.Y. Dom. Rel. Law § 236(B), courts divide only marital property through equitable distribution—a fair, not necessarily equal, split based on statutory factors. The index number filing fee is $210.
Key Facts: New York Property Division
| Factor | Detail |
|---|---|
| Filing Fee (Index Number) | $210 (plus ~$335 total mandatory court fees). As of March 2026. Verify with your local clerk. |
| Waiting Period | No post-filing waiting period; 6-month irretrievable breakdown required before filing under DRL § 170(7) |
| Residency Requirement | 1 year (with NY connection) or 2 years (no other connection) under DRL § 230 |
| Grounds | No-fault (irretrievable breakdown) plus 6 fault-based grounds under DRL § 170 |
| Property Division Type | Equitable distribution (common-law / equitable system, not community property) |
What Is Marital Property in New York?
Marital property in New York is all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or commencement of a matrimonial action, regardless of how title is held. Under N.Y. Dom. Rel. Law § 236(B)(1)(c), this definition is intentionally broad and captures wages, real estate, retirement accounts, and businesses built during the marriage.
New York courts apply a strong presumption that property acquired during the marriage is marital property. A spouse claiming an asset is actually separate must prove it by clear and convincing evidence—a demanding standard. This presumption reflects the legislative view of marriage as an economic partnership, where both spouses contribute value whether as wage earner, parent, or homemaker. The form of title does not control: a bank account in one spouse's name alone, opened with income earned during the marriage, is still marital property subject to equitable distribution. Understanding marital vs. separate property New York rules begins with this default presumption that earnings and acquisitions during the marriage belong to the marital estate.
What Counts as Separate Property in New York?
Separate property in New York includes four categories: property acquired before the marriage; inheritances and gifts from third parties (not from the spouse); compensation for personal injuries; and property designated separate by a written agreement. Under N.Y. Dom. Rel. Law § 236(B)(1)(d), separate property remains outside equitable distribution and stays with the owning spouse.
Separate property also includes any property acquired in exchange for separate property and the increase in value of separate property—except to the extent that appreciation is due to the contributions or efforts of the other spouse. This exception is critical and frequently litigated. A premarital brokerage account that grows purely through market forces stays separate, but a premarital business that grows because of a non-titled spouse's labor or homemaking support may generate a marital interest in the appreciation. The four statutory categories are exhaustive: if an asset does not fit one of them, New York courts treat it as marital. The phrase separate property divorce litigation in New York usually turns on tracing—proving an asset's separate origin with documentation strong enough to overcome the marital presumption.
Equitable Distribution: How New York Divides Property
New York follows equitable distribution, meaning marital property is divided fairly but not automatically 50/50. Under N.Y. Dom. Rel. Law § 236(B)(5), courts weigh statutory factors to reach an equitable result. This differs sharply from the nine community-property states, where marital assets are typically split equally. New York's index number fee to commence the action is $210.
New York became an equitable-distribution state in 1980 when the Legislature enacted DRL § 236 Part B, abandoning the old common-law title system where assets went to whichever spouse held legal title. The statute created a new conditional property right that vests upon commencement of a matrimonial action and fully vests upon dissolution. Courts have broad discretion, and outcomes vary based on the length of the marriage, each spouse's economic circumstances, and contributions to the marital estate. While long marriages often approach equal division, equitable distribution allows judges to award a larger share to one spouse where fairness demands it—for example, where one spouse dissipated assets or where a custodial parent needs the marital home.
The Statutory Factors Courts Weigh
New York courts must consider 14 enumerated factors before dividing marital property. Under N.Y. Dom. Rel. Law § 236(B)(5)(d), these factors include the income and property of each party at marriage and at filing, the duration of the marriage, the age and health of both spouses, and each spouse's direct and indirect contributions to acquiring marital property.
The statutory factors give courts a structured framework rather than an arithmetic formula. Key factors include: the duration of the marriage and the age and health of both parties; the need of a custodial parent to occupy the marital residence; the loss of inheritance and pension rights upon dissolution; the loss of health-insurance benefits; any award of maintenance (spousal support); the liquid or non-liquid character of marital property; the probable future financial circumstances of each spouse; the tax consequences to each party; and the wasteful dissipation of assets by either spouse. The statute expressly credits contributions made as a spouse, parent, wage earner, and homemaker, recognizing that non-economic contributions create real economic value within the marital partnership.
Commingled Assets: When Separate Property Mixes With Marital
Commingled assets occur when separate property is physically mixed with marital property, creating a presumption that the entire pool is marital. In New York, commingling does not automatically convert separate property to marital property, but it shifts the burden onto the owning spouse to trace and prove the separate portion by clear and convincing evidence. Failure to trace means the asset is treated as marital.
New York has not adopted the automatic-transmutation doctrine used in some states, where commingling instantly converts separate funds to marital. Instead, commingling is the physical act of mixing—for example, depositing $10,000 of premarital savings into an account and then adding marital earnings to that same account. The classic problem is traceability: when separate and marital funds blend so thoroughly that they cannot be isolated and identified, the separate character is lost and the commingled asset becomes marital. A spouse who deposits an inheritance into a joint account, then uses it for household expenses over several years, will struggle to prove what remains separate. The practical lesson: keeping separate property in a clearly labeled, segregated account—never mixing it with marital funds—is the strongest protection against commingling claims. The phrase commingled assets describes precisely this mixing that endangers separate-property status.
Transmutation: Changing the Character of Property
Transmutation in New York is the transformation of separate property into marital property (or vice versa) based on the owner's intent, most often shown by retitling an asset jointly. While commingling is the physical mixing of funds, transmutation turns on intent—and placing separate property into joint names is strong evidence of an intent to gift it to the marriage under N.Y. Dom. Rel. Law § 236(B).
New York case law distinguishes commingling (the act) from transmutation (the intent). When one spouse deposits separate funds into a jointly titled account, the law presumes the funds became marital because joint titling evidences donative intent—the intent to make a gift to the marital partnership. In Fields v. Fields, 15 N.Y.3d 158 (2010), the New York Court of Appeals reinforced that depositing separate funds into a joint account and using them for joint purposes is strong evidence of marital intent. This presumption can be rebutted: a spouse may show by clear and convincing evidence that joint titling was done only for convenience and that no gift was intended. However, rebutting the presumption is difficult, and many transmutation property disputes are resolved against the spouse claiming the asset stayed separate. Written prenuptial or postnuptial agreements remain the most reliable way to prevent unintended transmutation property outcomes.
The Appreciation Rule: Active vs. Passive Growth
New York treats the increase in value of separate property as marital property to the extent the appreciation results from the other spouse's contributions or efforts. Under N.Y. Dom. Rel. Law § 236(B)(1)(d)(3), passive appreciation (market growth) stays separate, but active appreciation aided by the non-titled spouse becomes a divisible marital asset.
New York courts draw a sharp line between active and passive appreciation, a distinction refined in Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415 (2009), and its progeny. Passive appreciation—growth caused by market forces, inflation, or third-party management with no spousal involvement—remains separate property. A premarital stock portfolio that doubles purely through market gains stays separate. Active appreciation is different: if a separate-property business or asset grows in value because of the titled spouse's labor during the marriage, and the non-titled spouse contributed directly (working in the business) or indirectly (homemaking that freed the titled spouse to work), the appreciation becomes marital property subject to equitable distribution. The marital residence often follows a special rule: a separate-property down payment usually remains a separate-property credit recoverable when the home is sold, even though the home's appreciation during the marriage may be shared.
Residency and Grounds Before You File
To file for divorce in New York, you must meet a residency requirement under DRL § 230 and state a legal ground under DRL § 170. The most common path requires one spouse to have lived in New York continuously for one year (with a New York connection) or two years (with no other connection), and to assert the no-fault ground of irretrievable breakdown for at least six months.
Under N.Y. Dom. Rel. Law § 230, five residency pathways exist. The simplest is two years of continuous New York residency immediately before filing, which requires no other connection. Shorter one-year residency suffices if the parties married in New York, lived in New York as spouses, or the grounds arose in New York. For grounds, N.Y. Dom. Rel. Law § 170 provides seven options, but more than 90% of filings use the no-fault ground under § 170(7)—a sworn statement that the marriage has been irretrievably broken for at least six months. New York was the last state to adopt no-fault divorce, doing so in 2010. A 2025 legislative change (Chapter 673) reduced the conversion-divorce separation period under DRL § 170(5) and § 170(6) from one year to six months. Notably, New York does not finalize any divorce until all property, support, and custody issues are resolved.
Filing Fees and Court Costs in New York
The index number fee to commence a New York divorce is $210, and total mandatory court filing fees reach approximately $335 for a basic uncontested case. As of March 2026, these fees include the $210 index number, $95 Request for Judicial Intervention (RJI), and $30 note of issue. Verify exact amounts with your local county clerk before filing.
New York divorce cases are filed in the Supreme Court—the only court with jurisdiction over matrimonial actions—through the County Clerk's Office, where fees are paid and case files maintained. Beyond the core $335, additional costs commonly include $35 to file a settlement agreement, $8 per certified copy, and $45 per motion filed during proceedings. Fees vary slightly by county, so confirmation with your specific clerk is essential. Litigants facing extreme financial hardship may apply for a fee waiver; recipients of public benefits such as SNAP, Medicaid, TANF, or SSI generally qualify, and an approved waiver covers the index number fee, note of issue fee, and motion fees. Official fee schedules and forms are available through the New York State Unified Court System at nycourts.gov.
Comparison: Marital vs. Separate Property at a Glance
| Asset Type | Classification | Subject to Division? |
|---|---|---|
| Wages earned during marriage | Marital | Yes |
| Home bought during marriage | Marital | Yes |
| Retirement contributions during marriage | Marital | Yes (via QDRO) |
| Inheritance to one spouse | Separate | No (unless commingled) |
| Gift from a third party | Separate | No |
| Property owned before marriage | Separate | No (appreciation may be marital) |
| Personal-injury compensation | Separate | No (lost wages portion may be marital) |
| Passive market growth of separate asset | Separate | No |
| Active appreciation aided by other spouse | Marital | Yes |
| Separate funds commingled and untraceable | Marital | Yes |
How to Protect Separate Property in New York
The most reliable way to protect separate property in New York is to keep it segregated, documented, and never commingled with marital funds. A written prenuptial or postnuptial agreement under N.Y. Dom. Rel. Law § 236(B)(3) can definitively classify assets and override the default equitable-distribution rules, preventing costly litigation over classification.
Practical protection strategies include: maintaining separate property in an individually titled account that receives no marital deposits; preserving documentation (account statements from the date of marriage, inheritance records, deeds) to trace separate origins; avoiding the use of separate funds for joint purchases or joint accounts; and never retitling separate property into joint names without understanding the transmutation consequences. For premarital businesses, keeping clear corporate records and compensating the owner-spouse with a market-rate salary helps distinguish passive value from active, marital appreciation. Because tracing burdens fall on the spouse claiming separate status—and must be met by clear and convincing evidence—the strength of your documentation often determines the outcome. Antonio G. Jimenez, Esq., a Florida-barred attorney covering New York divorce law, notes that disciplined recordkeeping from day one is the single most effective separate-property safeguard.