Matrimonial and Family Law Blog

Friday, December 8, 2017

What is Considered Marital Property in New York?

If you are in the midst of or considering a divorce in New York, you are probably wondering how the court will split up the property between you and your spouse. Divorce courts look at everything the parties own and label each item as either marital property or separate property.  Determining what is or is not marital property can be complicated, so it makes sense to have an equitable distribution lawyer help you figure things out.

Marital Property

The simplest definition of marital property is everything that is owned by one or more of the spouses and is not separate property. Money and other assets that either of you acquire during the marriage are assumed to be marital property unless a party convinces the judge it is separate. Here are some examples of marital property:

  • Bank accounts, investments, cash, and retirement accounts acquired while married. If you already had a retirement account before the marriage, the increase in value attributable to the time of the marriage is marital property, but the portion from before the marriage is separate.
  • Real property you two bought during the marriage. Note that, similar to a retirement account, the court can deduct a portion of the property value to account for contributions of separate property to the real property. This typically happens when one spouse uses funds owned prior to the marriage for the down payment.
  • If you and your spouse bought items of personal property, like cars, furniture, and appliances during the marriage, they will be marital property unless proven otherwise.
  • New York is somewhat unique in considering advanced educational degrees and specialized business permits as marital property if obtained during the marriage.

Separate Property

If you owned or received something before the marriage, it is separate property, regardless of whether it is real property or personal property. Gifts from someone other than your spouse and inheritance are separate property, even if you acquired them during the marriage.

If you exchanged separate personal property during the marriage, the new property is also separate property. For example, you owned a car when you were single. Several years into the marriage, it was time to replace the car. You traded in the old car for a new car and used only separate funds to pay the difference. The new car is your separate property.

Why Does It Matter if Something is Marital Property or Separate Property?

The court will award your separate property to you, and your spouse’s separate property to him or her. The court will then divide the marital property between both of you. Under New York law, the judge does not automatically give each party 50 percent of the marital property. Instead, the judge has to consider a list of factors to determine what would be a fair or equitable marital property distribution.

New York law allows you to enter into a written agreement with your spouse stipulating what is marital property and what is separate property. Be aware that mixing or commingling separate property with marital property can transform the separate property into marital property, unless it is real estate.

If you are going through a divorce or thinking about getting one, you need to be in the hands of an experienced New York divorce lawyer. Please contact us today to set up a free consultation to discuss your options.


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