Dividing Property in New York Divorce

NYC Divorce Lawyer Explains Separate VS Marital Property

Video Transcript:

Carla Barone: 

Generally speaking, marital property is anything that is acquired between spouses after the date of marriage, and separate property is anything acquired by either spouse prior to the date of marriage with some exception.

Molly Hendrickson: 

When dividing property in divorce, is all property the same? And what about things you own before you even got married? We're gonna find out right now on this episode of Ask The Lawyer. My guest is New York City Attorney Carla Barone. I wanna remind you that if you wanna ask Carla questions about your situation, it's easy, go to AskTheLawyers.com, click the button up top that says "Ask a lawyer", or you can always call the phone number you'll see at the top of your screen. Carla, thanks for joining us today.

Carla Barone: 

Thanks for having me, Molly.

Molly Hendrickson: 

Divorce never easy and dividing up assets also really difficult. Can you tell us a definition of marital property versus separate property in New York?

Carla Barone: 

Yeah, certainly. So in New York, the definition of marital and separate property is actually helpful because it's codified in our statutes. So under the domestic relations law, there is a definition of separate property, a definition of marital property. Generally speaking, marital property is anything that is acquired between spouses after the date of marriage, and separate property is anything acquired by either spouse prior to the date of marriage, with some exception. With respect to marital property, the statute says that property acquired by either or both spouses during the marriage and before execution of a separation agreement or commencement of the matrimonial action is considered marital property.

Carla Barone: 

And then marital property goes on to say in our statutes that marital property is not separate property, and then when you go to the definition of separate property, there are a few distinct categories of separate property, which we can get into, but certainly anything acquired after the marriage but by will, bequest or gift from another party, not the spouse. Compensation for personal injuries are separate property and property acquired in exchange for an increase in the value of separate property, unless the appreciation of that property is due to efforts are contributions of the spouse. That one can get a little bit tricky, and then any property that's recognized in a prenuptial agreement is considered separate property.

Molly Hendrickson: 

So can separate property ever turn into marital property? And can you give us some examples that this can happen?

Carla Barone: 

Yes, yes, absolutely. Separate property can turn into marital or otherwise be what's known as commingled with marital property. A very good example of this is a bank account. For instance, let's say Joe has a bank account before marriage, that's his separate property, and he marries Annie, and after marriage, Joe continues or starts to deposit his paycheck into his separate property account. What he has done is he has commingled marital funds, his paycheck with that of his separate property bank account, and therefore to a certain extent, or in full, his spouse Annie can claim that that is no longer separate property, that it is now commingled with marital funds and therefore, marital property.

Molly Hendrickson: 

Alright. Let's talk about the family home, it's the most common form of marital property. But what if the house is titled only in one spouse's name, does the other spouse have any claim on the home?

Carla Barone: 

Yes, absolutely. The definition of marital property is anything acquired after marriage by one or both spouses. New York does not look at title to determine whether it's marital or separate, but rather looks at the date of acquisition of the property and its treatment during the marriage. So if a home, a marital home was purchased after the marriage, but only one spouse is titled on it, that does not mean it belongs solely with the titled spouse. The non-titled owner... It is considered marital property. The non-titled owner would have equitable claim to that property.

Molly Hendrickson: 

And is marital property always divided 50/50 among each person?

Carla Barone: 

That is determined by several factors in the equitable distribution law. The answer is no. Equitable does not always mean equal. There's case law in New York with respect to that very theory, which is equitable doesn't always mean 50/50. There are now 16 factors in the equitable distribution law to determine how a court would apportion the marital estate and essentially divide it. And in considering all of those factors, the duration of the marriage is a very strong one, generally speaking, the longer the marriage, the closer to that 50/50 division you can expect. But also the property and income that the parties had coming into the marriage is a factor, whether or not the custodial parent of the children needs to occupy the residence, that's always a balancing factor, whether or not a party is going to get alimony or spousal support is one of those factors, in addition to several other factors, including whether or not there has been domestic violence in the relationship.

Molly Hendrickson: 

Alright, Carla, so nice to talk to you today. Thank you. Great information you gave us.

Carla Barone: 

Thank you.

Molly Hendrickson: 

And that's gonna do it for this episode of Ask The Lawyer. My guest has been lawyer Carla Barone. I wanna remind you if you'd like to ask Carla questions about your situation, go to AskTheLawyers.com, click the button at the top of the page that says "Ask a lawyer" and it will walk you through the very simple process. Thanks for watching. I'm Molly Hendrickson for Ask The Lawyers.

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