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What is Marital Property and Separate Property in New York Divorce?

May 13, 2018

One of the most complicated aspects of many divorces is the division of property. What is considered marital property and thus divided in a marriage dissolution? What is considered separate property and can be lawfully taken from the marriage by the rightful owner? These questions are the basis of many protracted court cases and legal disagreements.

Although New York law is complex, there are a few generalities that the courts will generally uphold. It is crucial to understand the laws behind the division of property if you are considering a divorce in the future.

The New York Definition of Marital Property

New York Domestic Relations Law gives most of the definitions and practices for divorces in the state. In this law, marital property is defined as property obtained after the date of marriage and prior to a legal separation or case filing. In some cases, other written agreements about division of property may supersede this. In most divorces, this property is split when a marriage is dissolved.

A lot of assets can fall under marital property because the court assumes that married partners are working equally to add to their wealth. Assets that count as marital property include:

  • Real estate
  • Cash and bank accounts
  • Automobiles
  • Retirement funds and pensions
  • Stocks and bonds
  • Art, furnishings, and collectibles
  • Businesses
  • Business permits
  • Advanced degrees

Many people believe that domestic law advocates for an equal split of marital property. However, the issue is much more complicated. Rather than going for an even division, courts aim to do what is fairest to both parties.

Exceptions to Marital Property

Although most assets are divided in a dissolution, there are broad exceptions. One of the biggest exceptions to marital property in a divorce is the large and murky area known as separate property. Separate property usually is property that was acquired before the marriage or after a filing for legal separation as well as any dividends or increase in value of this property. It also can include inheritance and gifts from people outside of the marriage.

In general, people will not have to divide separate property in a divorce, but rather can leave with the entire value. However, this can become complicated in application. Many couples use marital assets to maintain their separate property, which can then make the property more of a marital asset. For instance, if a person brings a home into a marriage and then uses their wages (which are considered community property) to pay property taxes, the home is no longer entirely separate.

Courts deal with this issue in a variety of ways. Sometimes they will rule the property entirely a marital asset or entirely separate. In other cases, they will “credit” funds use to maintain the separate property to the property being divided. An experienced divorce attorney is essential for people who wish to leave with their separate assets intact.

What About Prenuptial Agreements?

Many couples make agreements on how to divide property ahead of time. When this is made before a marriage, it is called a prenuptial agreement. When it is made after the wedding, it is called a postnuptial agreement. Prenuptial agreements are much more common because people are generally more motivated to negotiate an agreement before the marriage.

When people agree ahead of time what will be considered marital vs separate property in the event of a divorce, the courts will generally uphold this. These agreements can be simple or very complex. In general, they must have the agreement written clearly, then signed and acknowledged by all parties before a notary. The agreement must have been made knowingly and freely.

Prenuptial and postnuptial agreements can include what will be separate and marital assets in a divorce as well as a variety of other agreements. For example, people can agree before a divorce on how much (if any) alimony will be paid and for how long. They can detail child support, care, and education. People can waive their right to protest a will or take other legal action.

In most cases, when these agreements are made with the advice of a qualified marital attorney and agreed to by all parties, courts will uphold them. They are considered “written in stone.” Most agreements that are not honored by courts were not made with the advice of legal counsel.

How Is Value Determined?

It is easy to determine a value for cash, stocks, and other goods that have an explicit number attached to them. Other property can be more complicated. A home, for example, may have a value that is different from its appraised value. Art, furniture, and other marital belongings can be more complicated. In general, appraisers and financial specialists can help to put a dollar amount on these assets. However, this can become a point of contention. Even experts often disagree on the value of an item. In addition, there can be sentimental and other value that confounds the issue.

Dividing marital and separate property can be very complicated. It is essential to have the advice and assistance of an experienced divorce attorney. If you live in the Long Island area and need assistance with a prenuptial agreement or the division of property in a divorce, contact Long Island Divorce Lawyers today. We are ready to help you get the divorce settlement that you deserve.

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