Most states employ "equitable distribution" in dividing marital property as a result of a divorce. New York is an equitable distribution state. Instead of a fifty-fifty split, in which each spouse receives exactly one-half of the marital or separate property, equitable distribution looks at the financial situation that each spouse will be in after the termination of the marriage. While equitable distribution is more flexible, it is harder to predict the actual outcome, since the various factors are subjectively weighed. Factors considered in equitable distribution include:

• Earning power of the spouses (one might be much greater than the other)
• Separate property of the spouses (one might be greater in value than the other)
• One spouse having done all the work to acquire the property
• The value that one spouse contributed as the home-maker for the family
• Businesses, Degrees or Licenses
• Pension and Retirement Plans
• Economic fault of one spouse in wasting and dissipating marital property
• Duration of the marriage
• Relative health of the spouses
• The responsibility for providing for children of the marriage
• Spousal abuse or marital infidelity (to penalize the offending spouse).

All property acquired prior to marriage or by way of gift or inheritance is separate property. In New York, the Court can determine the percentage each spouse is due under the equitable distribution laws. For example, if one spouse owned property prior to marriage, but the other spouse contributed to the increase in value either directly or indirectly as a spouse or homemaker, the increase in value of the separate property may be equitably distributed as a marital asset.

If an owner of separate property wants to remain the separate owner of that property for divorce purposes, then he/she must keep that separate property apart from the marital property. When separate property is not kept apart from marital property, then separate property can become commingled with marital property. The courts may treat the property as belonging to the marriage.