Contrary to popular belief, a divorce does not mean that all the property held by the couple is equally divided between the two spouses. The process is significantly more complex. The state of New York is, by law, an equitable distribution state. Unless a couple comes to their own agreement on the distribution of their property, a judge will decide how it should be divided based on what he deems to be equitable or fair.
In order to make his decision, the judge first divides the property into two categories: separate property and marital property. Separate property includes any asset owned by an individual prior to the marriage. It may also include assets purchased after the marriage if they were bought using funds held by one partner prior to the union. Marital property refers to all other items purchased by the couple after the marriage. It also includes the wages of both individuals and their retirement funds. Any asset deemed to be separate property is retained by the spouse who purchased it. The judge then evaluates the marital property to determine its distribution.