Separate Property in Divorce

Not ALL Property is Divided between Spouses in a Divorce: Separate Property Remains with the Spouse.

When a couple divorces, the couple’s marital property is subject to equitable distribution. This means the property is divided between spouses according to certain legal principles. But not all of a spouse’s property is considered “marital property.” Some assets may be considered “separate property.” Separate property is not subject to equitable distribution, and therefore may remain with one spouse after a divorce.

The terms “marital property” and “separate property” are defined by New York’s Domestic Relations Law:

The term “marital property” shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined.

The term separate property shall mean:

(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;

(2) compensation for personal injuries;

(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;

(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part.

As a general rule, it appears that property obtained prior to a marriage, or through non-marital sources, remains separate, whereas property that is acquired during the marriage is marital property, subject to equitable distribution. But as with most areas of the law, there are exceptions. If a spouse “co-mingles” property that would otherwise be considered “separate” with “marital property,” it may be deemed marital property subject to equitable distribution. On the other hand, property that is acquired in exchange for “separate property” may be deemed “separate,” even if acquired during the marriage. Property acquired after a separation agreement or divorce proceeding is generally considered separate. Finally, prenuptial or separation agreements in which spouses agree to treat separate property as marital property are generally enforceable.

If you have questions about this or other legal matters, the Law Firm of Vaughn, Weber & Prakope, PLLC would like to assist you. Please call (516) 858-2620 to set up a free consultation with an experienced matrimonial attorney.