Separate vs. Marital Property

Separate vs. Marital Property in a New York Divorce

Experienced Syracuse attorney asserts your property rights

When you go through a divorce, the division of your marital property can have a profound effect on your financial situation. New York is an equitable distribution state, which means that each spouse can keep their separate property but a court divides marital property in a manner that is fair but not necessarily equal. If you’re trying to secure your property rights, there are two ways to go about it. Either you can prove an asset is yours alone or you can convince the court that for various reasons, you deserve a greater portion of the marital property. At Bombardo Law Office, P.C. in Syracuse, I help my divorce clients assert their rights to separate and marital property. Drawing on decades of experience, I inform the court of all factors that weigh in your favor.

What is typically considered separate property?

In equitable distribution, property includes both assets and debts. Your checking account is property but so is your credit card and student loan debt. Generally speaking, separate property refers to assets and debts that meet any of these criteria:

  • They were acquired prior to the marriage.
  • They were acquired during the marriage as separate property, such as compensation for a personal injury.
  • They were gained via inheritance or gift during the marriage.
  • They were declared separate property in a marital agreement.

To convince a court your assets are separate property, you should have documentation that proves its origin.

Dividing the marital estate

Property that is not separate goes into the marital estate and is subject to equitable distribution. Marital assets typically include:

  • Joint checking and savings accounts
  • Debt acquired during the marriage
  • Home equity
  • Motor vehicles
  • Vacation property
  • Investment accounts
  • Retirement accounts and pensions
  • Cash value of insurance policies
  • Pets
  • Furniture
  • Fine art and jewelry

Each item in the marital estate must have a value assigned to it. This often results in competing appraisals from financial experts on either side. Once values are determined, the court applies a number of factors to determine what percentage of the estate each party deserves. As your advocate, I assemble the evidence needed to make a compelling case in your favor.

Can separate property become marital property in New York?

In many cases, owners of separate property lose their exclusive rights because they did not maintain the separate nature of the property. Instead, they treated the assets as their joint property, so the court ruled that it must be shared. Take, for example, cash from an inheritance. If you received a tidy sum and then placed it in your joint checking account, you have commingled the funds, This makes it difficult to tell whether you have spent marital funds or your inheritance. Rather than parse receipts, a court may rule that you gifted the entire inheritance to the marital estate. But cash isn’t the only type of separate asset that can be converted to marital property. Vehicles, real estate and an interest small business can be “transmuted” to marital property if they are used jointly by the spouses for common purposes. If you are concerned about this issue with your property, you should consult a family law attorney with experience in this area.

Contact a proven Syracuse, New York lawyer for marital property distribution

Bombardo Law Office, P.C. in Syracuse represents Central New York parents in property disputes during divorce. Please call 315-800-4002 or contact me online to schedule a meeting to discuss your legal options.

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