NEW YORK, NY - Couples negotiating a divorce through mediation in Manhattan benefit from understanding how New York's equitable distribution statute affects what they can agree to and what a court would likely order if the case went to trial. Manhattan divorce mediation attorney Ryan Besinque of The Law Office of Ryan Besinque (https://www.besinquelaw.com/drl-236-equitable-distribution-mediation/) is providing guidance on how Domestic Relations Law Section 236(B) governs property division and spousal maintenance and what flexibility mediation offers beyond what courts typically order.
According to Manhattan divorce mediation attorney Ryan Besinque, DRL Section 236(B) is the statute that governs financial matters in every New York divorce filed after July 19, 1980. It replaced the old common law system, where property went to whoever held the title, and established that marriage is treated as an economic partnership. Under this framework, both spouses have a claim to property acquired during the marriage, regardless of whose name appears on the deed or account. The statute covers three major areas: the distinction between marital and separate property under DRL Section 236(B)(1)(c) and (d), the factors courts must consider when dividing marital property equitably under DRL Section 236(B)(5)(d), and the formulas and guidelines for calculating both temporary and post-divorce spousal maintenance. "The statute does not limit what couples can negotiate in mediation," explains Besinque. "It actually expands options by providing a framework for evaluating fairness while leaving room for creative agreements that go beyond what a court would typically order."
Manhattan divorce mediation attorney Ryan Besinque notes that one of the most critical concepts in any divorce mediation is the distinction between marital and separate property. Marital property includes everything acquired by either spouse during the marriage and before the filing of a divorce action, regardless of title. Separate property includes assets owned before the marriage, gifts from someone other than the spouse, inheritances, personal injury compensation excluding lost wages, and property described as separate in a valid prenuptial agreement. However, separate property can lose its protected status through commingling with marital funds, such as depositing an inheritance into a joint bank account or using premarital funds to improve jointly owned property. This commingling issue is one of the most common disputes that arises in mediation, and understanding the statutory framework helps couples resolve these questions without going to court.
Attorney Besinque highlights that New York courts evaluate 16 statutory factors under DRL Section 236(B)(5)(d) when dividing marital property. These factors include each spouse's income and financial circumstances at the time of marriage and at filing, the duration of the marriage, the custodial parent's need for the marital home, loss of pension and inheritance rights, loss of health insurance, any spousal maintenance award, the non-titled spouse's contributions including homemaking and career support, the liquidity of assets, future financial circumstances and earning potential, the difficulty of valuing assets such as business interests, tax consequences of proposed distributions, wasteful dissipation of marital funds, transfers without fair consideration, the domestic violence factor added in 2020, the best interest of a companion animal added in 2021, and any other factor the court finds just and proper. "In mediation, these 16 factors serve as a baseline for understanding what a fair division looks like," Besinque adds. "But couples are free to agree to any arrangement that works for their family, whether that is a 50/50 split, a 60/40 division, or a creative offset involving different asset categories."
The statute also governs spousal maintenance through detailed formulas. The post-divorce maintenance calculation under DRL Section 236(B)(6) uses two formulas, with the guideline amount generally being the lower result. The income cap for applying the guideline formula is $228,000 of the payor's income as of March 2024 and is updated every two years. For income above the cap, courts have discretion to award additional maintenance based on statutory factors including the standard of living during the marriage, each spouse's earning capacity, and the need for education or training. Duration guidelines suggest maintenance lasting 15 to 30 percent of the marriage length for marriages up to 15 years, 30 to 40 percent for marriages of 15 to 20 years, and 35 to 50 percent for marriages exceeding 20 years.
"One of the greatest advantages of mediation is the ability to negotiate terms a court would not typically order," observes Besinque. "Couples can structure lump-sum maintenance buyouts, creative property offsets, and detailed arrangements for issues like private school tuition, shared vacation properties, or the family residence that go well beyond standard judicial formulas." DRL Section 236(B)(3) specifically authorizes spouses to enter into written agreements addressing the ownership, division, or distribution of separate and marital property, and courts generally enforce such agreements when they are fair, voluntary, and entered into with full financial disclosure.
Retirement accounts, including 401(k) plans, pensions, and deferred compensation earned during the marriage, are subject to equitable distribution and often require a Qualified Domestic Relations Order for proper division. New York courts use the Majauskas formula, established in Majauskas v. Majauskas in 1984, to calculate the non-participant spouse's share of pension benefits based on years the pension was earned during the marriage compared to total years of service. For Manhattan professionals with detailed compensation packages including stock options and restricted stock units, mediation offers the opportunity to retain a single neutral financial professional to value these assets, saving considerable time and expense compared to competing expert testimony in court.
Under DRL Section 236(B)(5)(d)(3), courts consider whether the custodial parent needs to occupy or own the marital residence. In mediation, couples can explore options such as a buyout, a sale with proceeds divided, or an agreement that one spouse remains in the home for a set period before selling. For Manhattan couples with co-ops or condominiums, considerations such as board approval requirements and flip taxes are easier to address collaboratively in mediation. Consulting with an attorney who understands both equitable distribution law and the mediation process may help couples negotiate effectively and protect their interests.
About The Law Office of Ryan Besinque:
The Law Office of Ryan Besinque is a Manhattan-based law firm dedicated to divorce mediation, equitable distribution, custody, and family law matters. Led by attorney Ryan Besinque, the firm guides clients through mediation and divorce proceedings throughout Manhattan, Brooklyn, the Bronx, Queens, Westchester County, and Nassau County. For consultations, call (929) 251-4477.
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