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Recognizing the Differences Between Separate and Marital Property

By The Law Offices of Paul A. Boronow, PC on January 7, 2015

NY Asset DivisionOne of the key issues during a New York divorce is how to divide the property owned by one or both spouses. New York law focuses on “equitable distribution,” seeking a roughly equal distribution of assets and debts that take into account the financial position of each spouse as well as what assets and debts must be divided.

One of the first steps in dividing property during a divorce is to determine which assets and debts are shared marital property, and which belong to one spouse or the other separately. As a rule, New York views any property acquired after the marriage as “marital property,” belonging to both spouses, which must be divided equitably between them in a divorce. Even if a particular asset or debt is titled in the name of only one spouse – such as credit card debt or a professional license – it will likely be considered marital property if it was acquired during the marriage.

Not all property owned by either spouse is considered marital property, however. Certain items may be considered “separate property,” belonging to only one spouse. For instance, property that one spouse acquired before the marriage is considered separate property unless the other spouse contributed to its appreciation during the marriage. Gifts to one spouse or inheritances, the disability portion of one spouse’s pension, awards in personal injury lawsuits, and anything purchased with proceeds from separate property is also generally considered separate property. The party making the separate property claim has the burden of proving it to the court’s satisfaction.

The analysis, however, does not end there. Even separate property can lose its separate nature and convert to marital property. Co-mingling of marital and separate assets, to the point that the separate property cannot be defined, will cause a transmutation from separate to marital property. Simply depositing employment checks, which are marital property, into an account with separate property funds will work to co-mingle the two and cause the whole account to become a marital asset to which each party is entitled to equitable distribution.

At the Law Offices of Paul A. Boronow, our experienced Long Island divorce attorneys can help you ensure an equitable distribution of assets and debts in your divorce, so you have the support you need to build your future. Contact us today to learn more.

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