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Identifying marital and separate property in a divorce

On Behalf of | Mar 14, 2023 | Property Division

Property division is one of the most complicated aspects of a New York divorce. New York, like many states, uses an equitable distribution model for property division.

An equitable division of property does not necessarily mean that property is divided equally or split in half. Rather, it means that property is divided fairly.

However, before your property is divided, you must determine which property is marital property and which is separate property. Only marital property gets equitably divided in a divorce.

Marital property

Generally, marital property is any property that is acquired by you and your spouse during your marriage. Marital property can be a home purchased during the marriage, bank accounts opened during the marriage or even educational degrees obtained during the marriage.

It is important to note that the only requirement for property to be legally considered marital property is that it was purchased while you were married. It does not matter whose name is on the property.

For example, if you and your spouse bought a house after you were married, but the house and mortgage are in your name only, this does not automatically mean that you get the house.

The house is marital property, which means both of you have an equal claim to it. However, the court will examine factors such as whose name the house is in and who makes the mortgage payments, when deciding who gets the house.

Separate property

In contrast, separate property is property that was acquired by you or your spouse before your marriage. Your separate property must not have comingled, or mixed, with any marital property, or it will be converted to marital property and become part of property division.

Personal gifts to you, or an inheritance given to you, during your marriage, are also considered separate property, again, if they are not comingled with marital property.

If you deposit an inheritance into a joint bank account, that inheritance might now be marital property.

It is best to work with an experienced attorney through the divorce process. An attorney can examine your circumstances and help guide you toward a property division resolution that is in your best interest.