New York Divorce: What Is Marital Property and Separate Property?

An angry couple not looking at the other, both of their arms crossed When a couple divorces in New York, their property would be divided equally. This typically results in equal or equitable division, but not always. Equitable division of property is one that’s fair for both parties, and would take into account the contributions of each spouse and what each would need moving forward.

Divorce lawyers in Suffolk County, New York discuss the differences between marital and separate property.

But What Property Would Be Equitably Divided?

The court would only divide marital property. Each party could keep their own separate property. Essentially, marital property includes property that one spouse or the couple obtained while they were married, regardless of whose name is on the title, but subject to certain exceptions.

Each party’s income while married, all property bought using that income during the marriage, and the retirement benefits earned by each party while married, as well as all applicable property’s appreciation during the marriage, are likewise counted as marital property.

So What’s Considered Separate Property?

Only separate property won’t be divided by the court during a divorce. Rather, each spouse could keep her or his own separate property, except to the degree that the other party contributed to the property’s appreciation or value increase. In general, the following are considered separate property:

  • Any property that either party bought or obtained prior to marriage, including gifts or inheritance, except if the property was a gift from the other party
  • Any property deemed as separate property in a legal and valid written contract, such as a prenuptial agreement
  • Damage awards for personal injuries
  • Property obtained from the appreciation or proceeds of a separate property, except if the appreciation could be partially attributed to the contributions or efforts of the other party

The Takeaway

Divorce could be one of the most challenging events in anyone’s life and division of property could be emotional and messy. In such cases, work with an experienced divorce attorney to make sure you get a fair agreement and obtain what’s rightfully yours.