New York Divorce Law: Separate Property

By Wayne Thomas

Property division plays an important role in most New York divorces. The process begins with classifying assets owned by a couple as either marital or separate. Certain considerations will factor into this analysis, including the existence of written agreements and the parties' treatment of the property during the marriage. Once the determination is made, all marital property is divided between the parties based on fairness, with separate property remaining with the individual who acquired it.

Overview of Separate Property

In New York, property acquired during a marriage is generally considered to be the marital property of both spouses for the purposes of divorce. Separate property, on the other hand, are assets acquired by one party before the marriage as well as inheritances, gifts and personal injury awards received by one spouse during the marriage. Also, property acquired with separate property, or identified as such in a written premarital agreement, will be deemed separate. For example, if a couple purchased a home with one spouse's inheritance, the home will likely be treated as separate property and not divided upon divorce.

Treatment of Property

In certain cases, the treatment of separate property during a marriage can cause it to be reclassified as marital property. Transmutation occurs when spouses change the ownership of property; for example, when a spouse changes the title of a home that is his separate property to a joint title in both spouses' names. This change in title is usually treated as a gift between the spouses, converting the house from separate to marital property. Another way to change the character of property is by commingling separate property with marital property to the point where it is impossible to distinguish between the two. An example of commingling would be depositing an inheritance into a joint bank account then using funds from that account to pay marital bills; in such a case, courts are likely to presume the account is marital property. However, if a spouse can trace funds in the commingled account to their separate property source, those funds will be classified as separate and not marital.

Divorce is never easy, but we can help. Learn More

Increases in Value

In New York, if a spouse contributes to an increase in value of the other spouse's separate property, the increase in value may be considered a marital asset. To qualify, the increase in value must be caused by a spouse's active efforts, not a passive increase that occurs without the intervention of either spouse. But some courts have ruled that indirect efforts can be sufficient. For example, if one spouse acted as a homemaker providing the other spouse with the free time necessary to remodel the house, which is separate property, it could qualify as a contribution that increases the value of the separate asset. The law also allows a spouse to recoup payments of marital property made on separate loans or debt, or vice versa. For example, when marital funds are used to pay the mortgage of a spouse's separate property, those payments will likely be classified as marital property, entitling the other spouse to reimbursement.

Division of Assets

New York is an equitable distribution state, which means that all property classified as marital will be divided on the basis of what is considered fair between the parties. However, this does not always result in an even 50 percent division. The court will consider several monetary and non-monetary factors, including the age and needs of each party and the contributions made to the marriage, such as one spouse's services as a homemaker.

Divorce is never easy, but we can help. Learn More
Do I Have to Share My Inheritance With My Husband?

References

Related articles

How to Divide Money in a Divorce

Disputes over money can often lead to the breakup of a marriage, and when they occur, these disputes commonly persist throughout the divorce process. If you and your spouse can't come to agreement on your own, the court is tasked with figuring out where the money originated and how it should be divided after the divorce.

Proving Money Is Inherited

Each state has its own laws regarding the division of marital property in a divorce. Community property states, which stand in the minority, require courts to divide an estate equally, whereas equitable distribution states -- the majority -- seek to divide estates equitably, or fairly. In both types of jurisdictions, inherited money is usually considered separate property and not divisible in divorce. The burden of proving that certain funds represent your inheritance, however, will likely rest on you.

California Divorce Property Settlement Laws

California is a community property state, meaning a husband and wife each own half of all the property and assets acquired during their marriage. Marital assets include real property, personal property and income earned during the marriage. Debts acquired during the marriage are considered community debt subject to division in a divorce settlement.

Get Divorced Online

Related articles

Is an Inheritance Received During Marriage Subject to Division?

Spouses who receive an inheritance are entitled to do whatever they please with it while married. This includes sharing ...

Ohio Divorce Law on a House in a Spouse's Name

In Ohio, marital property is subject to equitable distribution in divorce cases. For many couples, the family home is ...

The 401(k) and Divorce Law in Arizona

Community property states, such as Arizona, view assets acquired during a marital relationship as equally shared ...

Divorce & Bank Accounts

Sharing of finances can be an important component to marriage. Using joint bank accounts can provide greater ...

Browse by category
Ready to Begin? GET STARTED