New York Domestic Relations Law Section 236 is the statute that governs money and property when a marriage ends. Part B, which applies to every divorce or annulment filed since 1980, does four things that matter to anyone starting a case: it freezes both spouses’ finances the moment the action is filed, it forces full financial disclosure, it divides marital property under sixteen equitable distribution factors, and it sets a maintenance formula capped at $241,000 of the payor’s income. The rest of the statute, from counsel fee shifting to modification standards, builds on those four pillars.
The Automatic Orders That Kick In at Filing
The second a divorce action is filed, a set of automatic restraining orders binds both spouses. The plaintiff is bound when the summons is filed; the defendant is bound on being served. The orders stay in place until a final judgment, a dismissal, or a written agreement between the parties modifies them. Violations damage your credibility with the judge who will later divide your assets, and courts take them seriously.
While the orders are in effect, neither spouse can:
- Sell, transfer, or hide property held individually or jointly, except for ordinary household expenses, normal business transactions, or reasonable legal fees.
- Withdraw from, transfer, or request benefits from any IRA, 401(k), pension, or similar retirement account without written consent from the other spouse or a court order.
- Take on unreasonable new debt, borrow against the home’s credit line, or run up credit card charges beyond usual household and business expenses.
- Remove the other spouse or any children from existing medical, dental, or hospital insurance, or let life, auto, or homeowners/renters coverage lapse.
- Change existing life insurance beneficiary designations.
There is also an affirmative duty: if either spouse learns of a tax lien, foreclosure, bankruptcy, or litigation that could affect the marital estate, they must notify the other in writing within ten days. The window between filing and trial is when assets are most vulnerable, and these restrictions exist because a spouse who drains an account or cashes out a 401(k) before the other side can react puts the whole equitable distribution process at risk.
What You Have to Disclose
DRL 236 B(4) requires compulsory financial disclosure in every case where maintenance, support, or property distribution is at issue. No motion or special showing is needed to trigger it. Each spouse must file a sworn statement of net worth listing all income, assets, and liabilities, wherever located, and must list every asset transferred during the three years before filing or the length of the marriage, whichever is shorter. Routine business transactions that swapped assets of roughly equal value do not need individual itemization as long as those assets appear elsewhere in the statement.
Along with the net worth statement, each spouse must produce a current and representative paycheck stub and the most recently filed state and federal income tax returns with W-2s. When children are involved, both parties must also disclose complete information about any group health plans available to them, including plan names, administrator addresses, identification numbers, and coverage details. Failure to comply can result in sanctions under the Civil Practice Law and Rules, up to and including contempt. Many contested divorces turn ugly early right here: the spouse who controls the financial records resists transparency, and the other has to push hard from the start.
How Marital Property Gets Divided
New York is an equitable distribution state, not a community property state. Equitable means fair under the circumstances, which is not the same as fifty-fifty. The court separates marital property from separate property, then divides the marital share.
Marital vs. Separate Property
Marital property is everything either spouse acquired during the marriage and before a separation agreement or divorce action was filed, regardless of whose name is on the title. Bank accounts, real estate, retirement contributions earned during the marriage, business interests, and investment gains all count. Separate property stays with the original owner and includes assets owned before the marriage, inheritances, gifts from anyone other than the spouse, and compensation for personal injuries.
Commingling is the trap. Deposit an inheritance into a joint account, or use it to renovate the marital home, and a court may reclassify some or all of it as marital property. Keeping separate property genuinely separate requires deliberate work throughout the marriage, not just a clean paper trail at the start.
The Sixteen Factors
When dividing marital property, the court must weigh all of the following:
- The income and property each spouse had at the time of the marriage and at filing.
- The duration of the marriage and the age and health of both parties.
- The need of the custodial parent to occupy or own the marital residence.
- The loss of inheritance and pension rights caused by the divorce.
- The loss of health insurance benefits.
- Any maintenance award, which is designed to work alongside the property split.
- Direct or indirect contributions to the other spouse’s career or earning capacity, even though enhanced earning capacity from degrees, licenses, or celebrity goodwill is no longer treated as divisible marital property itself.
- The liquid or non-liquid character of the marital property.
- The probable future financial circumstances of each party.
- The difficulty of valuing a business or professional practice, which lets the court keep a business intact rather than destroy its value through a forced division.
- The tax consequences to each party.
- The wasteful dissipation of assets, including gambling losses, extravagant spending, and hidden money.
- Transfers made in anticipation of divorce without fair consideration.
- Any acts of domestic violence, including their nature, extent, duration, and impact.
- The best interest of a companion animal, if there is one.
- Any other factor the court finds just and proper.
The judge must issue a written decision explaining which factors drove the allocation and why. Neither party can waive that requirement. The written reasoning becomes the foundation for any appeal, so the court cannot simply announce a result without showing its work.
How Maintenance Is Calculated
New York uses the same mathematical formula for temporary maintenance paid during the case and post-divorce maintenance paid after judgment. Which version of the formula applies depends on whether the higher-earning spouse also pays child support for children of the marriage, and if so, whether that spouse is the non-custodial parent.
The Two Formulas
When the payor earns more and also pays child support as the non-custodial parent, the court runs two calculations and uses whichever produces the lower number:
- 20% of the payor’s income minus 25% of the payee’s income.
- 40% of the combined income of both spouses, minus the payee’s income.
When there are no children requiring support, or the payor is the custodial parent, the two calculations shift:
- 30% of the payor’s income minus 20% of the payee’s income.
- 40% of combined income, minus the payee’s income.
In both scenarios, the guideline amount is whichever result is lower. If the lower number is zero or negative, the guideline amount is zero.
The $241,000 Income Cap
The formulas apply automatically only to the payor’s income up to $241,000. For income above the cap, the court decides whether to apply the formula to the excess or to use its own judgment based on the statutory factors. The cap is adjusted periodically; it was $228,000 before the most recent increase. This gives most cases a predictable floor while preserving flexibility in high-income divorces where a mechanical formula would produce absurd results.
How Long Maintenance Lasts
Post-divorce maintenance duration follows an advisory schedule tied to the length of the marriage:
- Marriages up to 15 years: 15% to 30% of the marriage’s duration.
- Marriages of 15 to 20 years: 30% to 40% of the marriage’s duration.
- Marriages over 20 years: 35% to 50% of the marriage’s duration.
These ranges are advisory. A judge can deviate based on the statutory maintenance factors, but the schedule sets the starting expectation, and significant departures require clear justification in the written decision.
The Factors That Can Move the Formula
Fifteen statutory factors shape both the amount and the duration of post-divorce maintenance beyond what the formula produces. The most consequential tend to be the present and future earning capacity of each party, including any history of limited workforce participation; the care of children, stepchildren, or elderly family members that reduced a spouse’s ability to earn; the availability and cost of health insurance; the standard of living established during the marriage; reduced earning capacity from giving up a career to serve as a homemaker; wasteful dissipation of marital property; and whether the payor can support both the payee and themselves.
These factors are how judges adjust when the formula produces a number that ignores reality. A ten-year marriage where one spouse stayed home with three children does not look like a ten-year marriage between two professionals earning similar salaries, and the factors are the mechanism that reflects that difference.
Opting Out: Prenups and Postnups
DRL 236 B(3) lets spouses opt out of the statute’s defaults through written agreements made before or during the marriage. The agreement can govern property distribution, maintenance, and other financial terms. To be enforceable, it must be in writing, signed by both parties, and acknowledged in the same manner required for a deed to be recorded. That last requirement trips people up: a simple notarization is not enough if the acknowledgment paragraph does not meet the specific formalities of New York’s Real Property Law.
Even a properly executed agreement can be challenged if it was unconscionable at the time of signing, or if a party signed under fraud, duress, or coercion. Courts also scrutinize whether both parties had independent legal counsel and whether accurate financial disclosures accompanied the agreement. An agreement that looks fair on paper but was signed by a spouse with no idea what the other owned may not survive judicial review. And when a court-approved agreement later needs to be modified, the standard is extreme hardship rather than the ordinary substantial change in circumstances, which makes modification much harder.
Who Pays for the Lawyers
DRL 236 B(8) creates a rebuttable presumption that the spouse with more money should pay the legal fees and expert costs of the spouse with less. The statute calls this the monied spouse presumption. The point is to prevent a wealthier spouse from using their resources to outspend and outlast the other side.
These costs reach beyond attorney fees. Contested divorces involving business interests, complex investments, or hidden income often require forensic accountants, real estate appraisers, pension actuaries, and vocational experts. Applications for fee shifting can be made at any point as costs accumulate, and the court can order interim payments to keep the playing field level throughout the case.
Changing or Ending Maintenance Later
Post-divorce maintenance is not necessarily permanent. Under DRL 236 B(9), either party can ask the court to modify or end a maintenance order by showing a substantial change in circumstances, including financial hardship or the payor’s full or partial retirement if it creates a meaningful shift in finances. The payee can also seek modification based on an inability to become self-supporting despite reasonable efforts.
Maintenance terminates automatically upon the death of either party or the payee’s remarriage, whether the new marriage is valid or not. When maintenance was set by a negotiated agreement rather than a court decision after trial, the modification standard rises to extreme hardship. That distinction makes the terms of a settlement agreement functionally more durable than a court-imposed award, and it is one reason attorneys fight hard over specific maintenance terms during negotiation.
The Collateral Consequences You Need to Plan For
The awards made under DRL 236 interact with several bodies of law outside the statute. Each of these is its own area, but you need to know they exist before signing anything.
Retirement Accounts
Retirement benefits earned during the marriage are marital property. Dividing a 401(k) or private pension requires a Qualified Domestic Relations Order drafted to the plan administrator’s specifications; a defective QDRO will be rejected and can delay benefits for months. Federal civilian pensions under FERS or CSRS require a Court Order Acceptable for Processing directed to the Office of Personnel Management, not a QDRO. Military retired pay is divisible under federal law, but DFAS will only make direct payments to a former spouse when the marriage overlapped with at least ten years of creditable service.
Federal Taxes
For any divorce or separation agreement executed after December 31, 2018, spousal maintenance is neither deductible by the payor nor taxable to the recipient. A dollar paid costs a full dollar and delivers a full dollar, with no tax benefit on either side. Property transfers between spouses incident to divorce trigger no taxable gain or loss under Internal Revenue Code Section 1041, but the recipient takes the transferor’s original cost basis. A settlement that looks even on paper can be badly lopsided after taxes if one spouse gets cash and the other gets appreciated assets carrying a built-in capital gains bill. For the marital home, a single filer can exclude up to $250,000 in capital gains on a sale of a principal residence; a married couple filing jointly can exclude up to $500,000, subject to ownership and use rules. IRS Publication 523 has specific guidance for separated and divorced taxpayers.
Bankruptcy
If the payor files for bankruptcy, the type of obligation determines whether it survives. Domestic support obligations, including spousal maintenance and child support, are nondischargeable in any chapter under 11 U.S.C. § 523(a)(5). Property settlement obligations under 11 U.S.C. § 523(a)(15) survive a Chapter 7 discharge, but can be discharged in Chapter 13. That creates a real incentive problem: a spouse who owes a large equalization payment might file Chapter 13 specifically to shed it. If the payor’s finances are shaky, structuring more of the award as maintenance rather than property distribution provides stronger protection.
Health Insurance
Divorce is a COBRA qualifying event, which entitles a former spouse to continue coverage under the working spouse’s group health plan for up to 36 months. COBRA is expensive because the former spouse pays the full premium plus a 2% administrative fee, but it is a bridge until coverage is available through an employer, the marketplace, or Medicare. The automatic orders already prohibit either spouse from dropping the other from existing coverage while the case is pending.
Social Security
A divorced spouse may be eligible to collect Social Security benefits on a former spouse’s earnings record if the marriage lasted at least ten years, the claimant is at least 62, and the claimant is currently unmarried. Collecting on an ex-spouse’s record does not reduce what the ex-spouse or their current spouse receives. This is a federal entitlement with no connection to the divorce decree itself, but it matters in settlement talks, especially for marriages approaching the ten-year mark, because the lifetime value of a benefit based on a higher-earning spouse’s record can be substantial.