Premarital Assets in NY Divorce: What Happens to My Property?

Identifying Marital & Separate Property in Divorce Proceedings

A primary concern for many divorcing spouses in New York is what will happen to their property. Since New York is an equitable distribution state, any property acquired during the marriage, known as “marital property,” must be divided fairly in a divorce. However, spouses’ separate property, or property acquired before marriage, remains separate.

To grasp an understanding of the difference between marital and separate property, please examine the following:

Marital Property

  • The real property you and your spouse bought during the marriage
    • However, any contributions from your separate property you have made to such real property, like paying part or all of the down payment with separate property funds, remains separate property
  • Personal property, like cars, boats, airplanes, furniture, and the artwork you and your spouse purchased during the marriage
  • Cash, securities, bank accounts, retirement accounts, and pensions acquired during the marriage
  • Advanced educational degrees and permits to engage in specialized businesses acquired during the marriage
  • Gifts to each other

Separate Property

  • Real property you obtained or owned prior to the marriage
  • Personal property you obtained or owned prior to the marriage
  • Property you obtained by inheritance or gift from someone besides your spouse during the marriage
  • Compensation you received for personal injuries during the marriage, not related to loss of wages or earning capacity during the marriage
  • Property you acquired in exchange for your separate property during the marriage
  • Any increase in the value of your separate property, unless that the increase is due to contributions or efforts from your spouse or yourself during the marriage
  • Property is described as separate property in a written agreement between you and your spouse.

Division of Property in New York

Determining “what’s mine” and “what’s yours” could be a demanding process. Spouses often face challenges in identifying marital property and separate property because many times, separate property can become marital property.

This may occur in situations where separate property and marital funds meet. For instance, if a spouse is gifted $10,000 and deposits the funds into a joint bank account, that gift becomes marital property. Another example is if the separate property appreciates, or increases in value, during the marriage.

For context, an active appreciation that results from marital efforts may be considered marital property, while passive appreciation that stems from markets or third parties may remain separate property. For a spouse to successfully argue that a separate property should be deemed marital property in their divorce, they must prove the following:

  • The separate property appreciated during the marriage
  • Both parties made contributions to that property during their marriage
  • There is a relationship between the contributions and some or all of the appreciation

With this in mind, it can be challenging to identify and prove separate and marital property in New York divorces. One party may argue that they provided homemaker services to their spouse’s separate property, such as a rental home, that contributed to its appreciation. As a result, a judge may render a decision for them.

Luckily, our highly trained and experienced Westchester County divorce lawyer can help make the equitable distribution process as smooth as possible for you. We understand that identifying separate and marital property can be confusing and draining, especially when both parties disagree on which property belongs to them and which property is subject to equitable division.

We invite you to contact us at (845) 605-4330 to discuss your situation with us and learn how we can help you resolve your legal concerns.

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