Understanding Your Divorce & Property Rights

If you’re worried about the potential of divorce in your future, it's important for you to understand your rights and the differences between separate and marital property.

Filling for Legal Separation in New York

When you or your spouse files for legal separation or divorce, you can agree on the division of marital property and separate property.

You may choose to exclude certain property from marital property by signing a prenuptial or a postnuptial agreement. If you’re unable to amicably agree on the splitting of assets, the court will decide, after trial, which property is separate property and which property is marital property.

The court will also decide what would be a fair and equitable, but not necessarily equal, division of the marital property.

What Is Marital Property?

Marital property is a legal term that refers to property acquired during the course of a marriage and includes:

• Assets acquired with your spouse during marriage, with exception to any contributions of your separate property you may have made

• Such as cars, boats, furniture, airplanes, cash, securities, bank accounts, as well as gifts exchanged as couples

What Is Separate Property?

Property that you acquired before a marriage is considered separate property. Other examples of separate property are:

• Real property acquired or owned before marriage

• Personal assets acquired before marriage

• Assets or property owned through inheritance or gifts received from someone other than your spouse during the marriage

• Compensations for wage loss or through injury

• Property obtained by an exchange of assets during the marriage

Mixing Separate and Marital Property together

Sometimes couples may inadvertently or intentionally mix separate property together while married. An example of this can be adding your spouse’s name to a bank account you owned prior to the marriage. By adding them to the account the court can presume this to be a gift ½ the value of the account, thus turning the entire account into marital property.

If you mix or commingle your separate property with marital property, the court may consider part or all of your separate property to be marital property, and divide it up with your spouse. 

This rule does not usually apply to real estate, particularly the marital home, where a separate property contribution to the purchase will normally remain your separate property.  You will be able to get your separate property contribution back after the marital house is sold.

Equitable Distribution of Property

In New York, property is not automatically divided in half and distributed equally to each spouse. Instead, the court takes into account 13 specific factors in determining the equitable distribution of property:

1. A detailed record of the income and assets owned by the spouses before marriage and during the time of the divorce

2. The duration of the marriage, as well as the current state of health of both spouses.

3. Who takes custody of the kids (minors), and whether or not they will stay in the marital residence or move with the parent who wins the custody battle.

4. The loss of both pension and inheritance rights of the spouses triggered by a divorce

5. The loss of health insurance benefits of the spouses triggered by a divorce

6. Awarding of supports and or proposes maintenance to be overseen by the court

7. The silent contributions to marital property made by a spouse to the partner, which is void of a title. For instance, helping your partner acquire education, real estate, lucrative business deals, or any other assets.

8. The character of both liquid (property can easily be converted to cash) and non-liquid marital property.

9. The feasible future financial situations of each party

10. The almost impossible task of valuing certain assets as well as allocating and sharing businesses to each spouse for proper management.

11. The cost of tax for each spouse

12. Identifying the spouse that spends family funds in an unjustifiable matter while divorcing proceedings where ongoing.

13. Taking to account whether either spouse disposed of and or transferred marital assets at anything other than the current market value haven know the divorce was imminent.

The information provided is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.