Domestic Relations Law (DRL) § 236(B) does not limit what you can negotiate in mediation. It actually expands your options. The statute sets the rules New York courts follow when dividing marital property, calculating spousal maintenance, and handling financial issues in divorce. In mediation, you and your spouse use those same rules as a framework, but you have the freedom to craft agreements that go beyond what a judge might order.
At The Law Office of Ryan Besinque, Manhattan divorce mediation lawyer Ryan Besinque helps couples throughout New York City understand how equitable distribution law applies to their specific situation. As a dedicated NYC divorce attorney, Ryan guides clients through mediation so they can reach fair agreements without the cost and stress of litigation.
This guide explains what DRL § 236(B) covers, how its equitable distribution factors shape property division negotiations, what counts as marital versus separate property, how spousal maintenance guidelines work in mediation, and what flexibility couples have when they choose to negotiate rather than litigate. Contact The Law Office of Ryan Besinque today at (929) 251-4477 for a consultation.
What Does DRL § 236(B) Actually Cover?
Domestic Relations Law § 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 simply went to whoever held the title. Under this statute, marriage is treated as an economic partnership, and both spouses have a claim to property acquired during the marriage regardless of whose name is on the deed or account.
The statute covers three major areas. First, it defines the difference between marital property and separate property under DRL § 236(B)(1)(c) and (d). Second, it sets out the factors courts must consider when dividing marital property equitably under DRL § 236(B)(5)(d). Third, it provides formulas and guidelines for calculating both temporary and post-divorce spousal maintenance under DRL § 236(B)(5-a) and DRL § 236(B)(6).
For couples in mediation, DRL § 236(B) serves as the legal backdrop for every discussion about money, property, and support. Understanding this statute helps you evaluate whether a proposed agreement is fair, because it shows you what a judge would likely do if your case went to trial at the New York County Supreme Court. That knowledge gives both spouses a realistic baseline for negotiation.
Key Takeaway: DRL § 236(B) governs property division and spousal maintenance in all New York divorces. In mediation, the statute provides a framework for evaluating fairness, but couples can negotiate terms that differ from what a court might order.
How Does New York Define Marital Property Versus Separate Property?
The distinction between marital property and separate property is one of the most important concepts in any divorce negotiation. Under New York law, only marital property is subject to equitable distribution. Separate property stays with the spouse who owns it.
What Counts as Marital Property?
Marital property includes everything acquired by either spouse during the marriage and before the filing of a divorce action or signing of a separation agreement. It does not matter whose name appears on the title. A home purchased during the marriage, retirement contributions made during the marriage, investment accounts funded with earned income, and business interests developed during the marriage all typically qualify as marital property.
New York’s definition of marital property focuses on when the property was acquired; generally, property acquired by either or both spouses during the marriage and before commencement of the action, regardless of whose name is on the title.
What Counts as Separate Property?
Separate property under DRL § 236(B)(1)(d) includes property 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 written agreement, such as a prenuptial agreement. Separate property generally remains with the owning spouse and is not divided in divorce.
However, separate property can lose its protected status through commingling. If one spouse deposits an inheritance into a joint bank account or uses premarital funds to improve a jointly owned home, the separate property may become marital property. This is one of the most common disputes in mediation, and understanding the rules helps couples resolve these issues without going to court.
Divorce Mediation Lawyer in Manhattan – The Law Office of Ryan Besinque
Ryan Besinque, Esq.
Ryan Besinque, Esq., is a dedicated divorce and family law attorney based in New York City. He has represented clients in divorce, custody, support, and family offense cases throughout Manhattan, Brooklyn, the Bronx, Queens, Westchester County, and Nassau County. Ryan earned his undergraduate degree in business administration from the University of Southern California and his Juris Doctor from the University of San Francisco School of Law.
Mr. Besinque brings a collaborative and communicative approach to divorce mediation, helping couples reach fair agreements while minimizing conflict. In addition to his private practice, he provides legal services through the Manhattan Assigned Counsel Panel, demonstrating his commitment to accessible legal representation. Clients value his detailed communication, consistent availability, and ability to tailor his approach to each family’s unique circumstances.
What Are the 16 Equitable Distribution Factors Under DRL § 236(B)?
When a New York court divides marital property, it does not simply split everything 50/50. Instead, the court considers 16 statutory factors listed in DRL § 236(B)(5)(d) to determine what is fair under the circumstances. In mediation, these same factors help you and your spouse evaluate whether a proposed division is reasonable.
| Factor | What It Considers | How It Affects Mediation |
|---|---|---|
| Income and property of each spouse | Financial standing at marriage and at filing | Helps determine starting positions for negotiation |
| Duration of marriage | Length of economic partnership | Longer marriages may justify closer-to-equal splits |
| Custodial parent’s housing needs | Whether one spouse needs the marital home | May influence who keeps the residence |
| Loss of pension and inheritance rights | Benefits forfeited due to divorce | Can justify a larger share of other assets |
| Loss of health insurance | Cost of replacement coverage | May factor into maintenance or property offset |
| Maintenance award | Spousal support is being paid | Property division and maintenance are interconnected |
| Non-titled spouse contributions | Homemaking, career support, joint efforts | Recognizes non-financial contributions to the marriage |
| Liquidity of assets | Cash versus illiquid holdings | Affects how assets can be practically divided |
| Future financial circumstances | Earning potential and financial outlook | Protects the spouse with fewer opportunities |
| Difficulty valuing assets | Complex assets like businesses | May require appraisals or creative solutions |
| Tax consequences | Impact of transfers and sales | Smart mediation accounts for after-tax value |
| Wasteful dissipation | Squandering marital funds | Can shift the distribution toward the other spouse |
| Transfers without fair consideration | Moving assets before filing | Protects against pre-divorce asset hiding |
| Domestic violence | Acts by one party against the other | Added in 2020 as a mandatory consideration |
| Best interest of a companion animal | The care, well-being, and emotional bond with the family pet | Added in 2021, allows couples to negotiate “pet custody” or shared access schedules rather than treating the animal as mere property |
| Any other factor that the court finds just and proper | Case-specific fairness considerations not captured elsewhere | Gives spouses room to address unique circumstances and still align with “equitable” outcomes |
In mediation, you are not bound to follow these factors rigidly. You can agree to a 60/40 split, a 50/50 split, or any other arrangement that works for your family. The factors simply provide a framework for understanding what a fair result looks like.
How Does Mediation Give You More Flexibility Than Court?
One of the greatest advantages of mediation is that couples can negotiate terms that a court would not have the authority or inclination to order. Under New York law, a judge must follow DRL § 236(B) and can only work within the bounds of the statute. In mediation, you set the terms.
For example, a Manhattan couple might agree that one spouse keeps the co-op apartment in exchange for the other spouse receiving a larger share of retirement accounts and a maintenance buyout. A court might reach a similar result, but the couple in mediation can tailor the specifics, the timing of transfers, and the tax consequences in ways that benefit both sides. They can also address issues that courts typically do not handle, such as who pays for a child’s private school tuition or how to divide frequent flyer miles.
Mediation also allows couples to consider factors that are not part of the statutory factors. The emotional attachment to the family home, the desire to keep a business intact, or the preference for a clean financial break can all be part of the conversation. A judge at the New York County Supreme Court does not have the time or the mandate to explore these personal priorities, but a mediator can.
The statute under DRL § 236(B)(3) specifically authorizes spouses to enter into agreements that address the ownership, division, or distribution of separate and marital property. This means any agreement you reach in mediation, as long as it is fair and entered into voluntarily with full disclosure, can be incorporated into your divorce judgment and will generally be upheld by the court.
Key Takeaway: Mediation gives couples the flexibility to negotiate creative agreements that go beyond what courts typically order. DRL § 236(B)(3) authorizes spouses to make their own property agreements, which courts generally enforce if they are fair and voluntary.
How Do Spousal Maintenance Guidelines Work in Mediation?
DRL § 236(B) also governs spousal maintenance, which is sometimes called spousal support or alimony. The statute provides formulas for calculating both temporary maintenance during the divorce and post-divorce maintenance after the case is finalized. In mediation, these formulas provide a starting point for negotiation.
How Is Post-Divorce Maintenance Calculated?
The post-divorce maintenance formula under DRL § 236(B)(6) uses two calculations. You compute both amounts, and the guideline amount is generally the lower of the two results, unless a deviation applies or the parties agree otherwise.
The income cap for applying the guideline formula is $228,000 of the payor’s income (effective March 1, 2024, and updated every 2 years). For income above the cap, the court has discretion to award additional maintenance based on the statutory factors listed in DRL § 236(B)(6)(e)(1). These factors include the standard of living during the marriage, each spouse’s earning capacity, and the need for education or training.
How Long Does Maintenance Last?
New York law provides an advisory schedule for the duration of post-divorce maintenance based on the length of the marriage:
- Marriages of 0 to 15 years: maintenance may last 15% to 30% of the length of the marriage
- Marriages of more than 15 to 20 years: maintenance may last 30% to 40% of the length of the marriage
- Marriages of more than 20 years: maintenance may last 35% to 50% of the length of the marriage
In mediation, couples can agree to different amounts and durations than what the formula produces. One spouse might accept a lump-sum payment instead of monthly maintenance. Another couple might agree to a shorter duration at a higher monthly amount. The flexibility of mediation allows both sides to structure maintenance in the way that best fits their financial goals and circumstances.
Key Takeaway: DRL § 236(B)(6) provides formulas for calculating the maintenance amount and an advisory schedule for the duration. In mediation, couples can use these as benchmarks while negotiating terms that better suit their individual financial situations.
What Happens to Retirement Accounts and Pensions in Mediation?
Retirement benefits earned during the marriage are marital property under New York law and are subject to equitable distribution. This includes 401(k) plans, Individual Retirement Accounts (IRAs), pensions, and deferred compensation. The portion earned before the marriage remains separate property.
Dividing retirement accounts often requires a Qualified Domestic Relations Order (QDRO), which is a court order directing the plan administrator to pay a portion of benefits to the non-participant spouse. In mediation, couples can decide exactly how to divide these accounts, whether through a QDRO, an offset against other assets, or a combination of both.
For Manhattan professionals with complicated compensation packages that include stock options, restricted stock units (RSUs), and deferred bonuses, mediation offers the chance to work through these valuations carefully with the help of financial advisors. A court typically hears testimony from competing experts, but in mediation, couples can retain a single neutral financial professional to value these assets, saving time and money.
New York courts use the Majauskas formula, established in Majauskas v. Majauskas, 61 N.Y.2d 481 (1984), to divide pension benefits. This formula calculates the non-participant spouse’s share based on the number of years the pension was earned during the marriage compared to the total years of service. In mediation, couples can agree to use this formula or negotiate an alternative division that achieves the same financial result through different means.
Can You Negotiate Business Valuations and Professional Practices?
Dividing a business or professional practice is one of the most challenging aspects of equitable distribution. Under DRL § 236(B)(5)(d)(10), courts consider the difficulty of valuing business interests and the economic desirability of keeping a business intact. This factor is especially relevant for NYC entrepreneurs, physicians, attorneys, and other professionals.
Under DRL § 236(B)(5)(d), courts do not treat as marital property the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, the court may still consider the other spouse’s direct or indirect contributions when equitably dividing other marital property.
In mediation, business valuation does not have to be a contentious battle. Couples can agree to hire a single neutral appraiser rather than paying for two competing valuations. They can also negotiate buyout terms, installment payments, or offsets against other marital assets. For a spouse who owns a small business in Manhattan, mediation offers the opportunity to structure a buyout that does not force the sale of the business or disrupt its operations.
How Does the Marital Residence Factor Into Negotiations?
The marital home is often the most emotionally charged asset in a divorce. Under DRL § 236(B)(5)(d)(3), courts consider whether the custodial parent needs to occupy or own the marital residence and use its household effects. This factor gives weight to stability for children, but it does not automatically mean the custodial parent keeps the home.
In mediation, couples can explore several options for the marital residence. One spouse can buy out the other’s share, the home can be sold and the proceeds divided, or the couple can agree that one spouse remains in the home for a set period, such as until the youngest child finishes high school, before selling. Mediation allows couples to build timelines and conditions around the home that a court order cannot easily accommodate.
For Manhattan couples with co-ops or condominiums, additional considerations arise. Co-op boards may need to approve a transfer, and there may be flip taxes or other costs associated with selling. These practical details are easier to address in mediation, where both spouses can work through the logistics together rather than relying on a judge who may not be familiar with the specifics of their building’s rules.
Key Takeaway: The marital residence is often the most contested asset. Mediation allows couples to negotiate buyouts, deferred sales, or other arrangements that prioritize stability for children and account for the practical realities of co-op and condo ownership.
What Should You Know Before Starting Mediation Under DRL § 236(B)?
Entering mediation with a solid understanding of your legal rights under DRL § 236(B) puts you in the best position to negotiate effectively. Before your first session, consider taking these steps to prepare:
- Gather complete financial records, including tax returns for the past three years, bank and investment account statements, retirement account statements, pay stubs, business financial statements, and real estate appraisals
- Identify which assets you believe are marital property and which are separate property, with documentation to support your position
- Review the equitable distribution factors and consider how each one applies to your situation
- Understand the maintenance formula, so you have a realistic expectation of what spousal support might look like
- Consult with an attorney who can explain your rights under the statute and review any agreement before you sign it
Each spouse in mediation should have their own attorney. The mediator is a neutral party who facilitates the conversation but does not represent either spouse. An attorney can review proposed terms, identify potential issues, and ensure that the final agreement protects your interests. Under New York law, a mediated agreement that is signed without independent legal review may be more vulnerable to challenge.
Work with a Manhattan Divorce Mediation Attorney Today
Dividing property and negotiating support during a divorce can feel overwhelming, especially when you are trying to understand complicated statutes like DRL § 236(B). Having an experienced attorney who understands both the law and the mediation process can make a significant difference in the outcome.
Manhattan divorce mediation lawyer Ryan Besinque has helped couples throughout New York City resolve property division, spousal maintenance, and other financial issues through mediation. At The Law Office of Ryan Besinque, we guide clients through every stage of the process, from financial disclosure to drafting the final agreement. Ryan works with couples in Manhattan, Brooklyn, the Bronx, Queens, and neighboring Westchester and Nassau counties.
Call The Law Office of Ryan Besinque at (929) 251-4477 to schedule a consultation. Ryan can review your situation, explain how DRL § 236(B) applies to your case, and help you determine whether mediation is the right path for your divorce.
