Can I Be Forced to Hand Over Personal Property in My Divorce?

What’s mine is mine. What’s yours is yours. What’s ours is split evenly. Some divorcing couples in New York may think that is how equitable distribution works. If they do, they might be in for a surprise should their divorce go to court.

When a couple gets married, they often have their own bank accounts, cars, furniture, and other property. Once married, couples typically acquire additional property through the years. Their premarital and marital assets may appreciate during the marriage.

Defining what is separate property and what is marital property can be more complicated than it appears on the surface.

Basics of Separate Property

Any property that is acquired before the marriage is generally considered separate property. That can mean cars, homes, boats, and even financial products like mutual funds purchased before the marriage. Any asset considered to be separate property is not considered in property division decisions made by the court.

Exceptions to property gained after the marriage but still considered separate include the following:

  • Non-economic damages (pain and suffering, etc.) awarded in a personal injury lawsuit
  • Inheritance (money, real estate, other valuables)
  • Gifts (not given by the other spouse)
  • Property acquired with separate property

Separate property is best kept separate. For example, if you rent out the home you had before you married, deposit the rental payments in a separate account with only your name.

Basics of Marital Property

Property that is acquired after the marriage occurs is generally considered marital property. The same items mentioned for separate property apply here: homes, cars, boats, and financial products that are acquired by either spouse after getting married.

Property that may seem separate but is considered a marital asset includes the following:

  • Economic damages (lost wages, medical bills) awarded in a personal injury lawsuit during the marriage
  • The increase in value of separate property that the spouse helped to improve
  • Increases in retirement assets from contributions made during the marriage

One spouse can also have a claim on their former spouse’s premarital business if they provided time or their own separate money to improve the value of the business.

Commingling Creates Confusion

Confusion about what is marital and what is separate happens when the two are commingled. Using the example used for separate property, if the rental check is deposited into the marital joint account, the spouse owning that property would have difficulty proving that the income from it is truly separate.

Other examples of commingling that could cause a judge to consider separate property as marital:

  • One spouse handles the repair work on a rental home the other has owned since before the marriage.
  • One spouse uses part of their inheritance to buy the couple a vacation home.
  • One spouse adds the name of the other to a checking account they had before marrying
  • A spouse uses marital funds to reupholster their inherited grandmother’s couch

Transmutation of separate property to marital property usually happens more often the longer a couple is married.

Couples Can Decide for Themselves Who Gets What

When a judge decides how assets are divided, they will consider the length of the marriage, the spouses’ ages and health, their probable future financial circumstances, and many other factors. Divorce judges aim to be fair, but they cannot know the couple and all the specifics of their relationship.

Whenever possible, couples should reach an agreement without going to court:

  • Mediation. During mediation, both spouses meet with a neutral family law attorney who acts as the mediator. Their job is to help the couple understand the process, their rights, and navigate through the divorce issues that need to be settled. The mediator is on no side, rather they facilitate the couple in making decisions for themselves.
  • Collaborative Divorce. In some ways, collaborative divorce can seem like a light version of litigation. Both spouses have their own attorneys, and all four parties will meet to discuss the issues in an effort to find a middle ground.

If mediation or collaborative divorce does not result in an agreement, a couple can still take their case to court.

Legal Advice for Property Division

Couples may agree on the divorce but be miles apart on matters like equitable distribution. At the Law Office of Dennis R. Vetrano, Jr., LLC, our sole focus on family law gives us significant experience in helping clients through complex divorce issues.

If you have questions about divorce and potential next steps, schedule a free one-on-one consultation to discuss your case. Contact us online or call (845) 605-4330.

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