.png)
In New York divorce proceedings, the line between separate and marital property isn’t always clear. Property division can quickly get tangled, especially when marital assets and personal property mix together.
Assets such as bank accounts, retirement accounts, and other investments may start as separate property, yet over time, they can shift into the marital estate. For any spouse, figuring out which assets will remain separate property often becomes important during a divorce. Our team can also advise on how long do you have to sell a house after divorce in NY.
Keeping previously separate property separate takes careful planning and, often, legal help. How can one spouse keep what’s rightfully theirs? What needs to be done to protect these assets? This article answers all of these questions.
What Is Separate or Marital Property?
Dividing property in a divorce follows an "equitable distribution" approach in New York. Essentially, this means that assets are divided fairly, though not necessarily equally.
In this equitable distribution state, it's important to know which assets are separate property and which are marital property. Only marital property is divided in a divorce, while separate property remains with the spouse who owns it.
Separate property generally includes assets owned before marriage, inheritances, gifts to one spouse, and property funds kept apart from joint accounts. For example, a house bought by one spouse before marriage is generally considered separate property.
On the other hand, marital assets include income earned during the marriage, jointly held bank accounts, and property bought together, even if it's under one spouse's name. Working with an experienced family lawyer in Albany can help clarify what is considered marital property and separate property to ensure a fair outcome.
Types of Assets Considered Separate Property
In New York, some types of assets are generally considered separate property and remain with one spouse after a divorce rather than becoming marital property (subject to division). Keeping these assets separate is important to ensure they aren't accidentally mixed with marital assets, which could complicate their status.
Some of the most common types of separate property are:
Assets owned before marriage: These are usually considered separate property acquired before the marriage.
Inheritances and gifts: Anything gifted to one spouse alone or inherited individually is treated as separate as long as it's kept apart.
Personal injury compensation: Payments for personal injuries are typically kept separate, except when they cover lost wages.
To protect separate property, these assets should remain separate and shouldn't be mixed with joint accounts or used for shared expenses. An equitable distribution applies only to marital property in New York, so separating these assets carefully can make a big difference in divorce outcomes.
How Separate Property Can Become Marital Property
In New York, certain actions can change separate property into marital property, which can complicate the division process during divorce. This can happen through "commingling" (mixing assets) or "transmutation" (changing ownership).
Commingling: Mixing Separate and Marital Funds
Commingling happens when separate property funds get mixed with marital assets, often in a joint bank account. For example, if one spouse deposits inheritance money (which is separate property) into a shared account, the funds might be considered marital property.
Using separate funds to pay for shared expenses, such as a mortgage, can also blur the line between separate and marital property.
Transmutation: Changing Ownership Intentionally
Transmutation happens when one person intentionally changes ownership and, hence, makes a property a marital asset. An example of this would be adding the name of the other spouse to a home that was separate property. This change can mean that the property is considered a marital asset and could be divided during a divorce.
Why These Actions Matter
Commingling and transmutation can cause headaches in divorce cases. Once separate property is mixed or re-titled, it's more difficult to prove it should remain separate. Keeping careful boundaries around assets can help avoid issues with New York's equitable distribution rules.
How to Prove Separate Property in Divorce in NY
Proving that certain assets should remain separate in a New York divorce can make a big difference in the division process. Following these steps can help keep things clear and protect what's not considered marital property.
Step 1: Keeping Documentation
Good records are important to proving that assets are separate. Documents such as bank statements, deeds, inheritance papers, and bills show ownership and clarify how assets were kept.
For example, if one person inherits money, keeping proof of this inheritance helps confirm it's not considered marital property. Clear paperwork helps avoid disputes with the other spouse during the divorce.
Step 2: Avoiding Commingling
Keeping individual bank accounts for personal funds is another step to maintaining a separate status. When inherited money or personal funds stay in individual accounts, it's easier to show they're separate. Mixing funds with marital property, however, can make them considered marital assets.
Step 3: Using Prenuptial or Postnuptial Agreements
A prenuptial or postnuptial agreement can spell out which assets are separate. These agreements clarify what each spouse keeps if the marriage ends, which is useful in the division process. They're a straightforward way to make sure separate assets stay that way.
Step 4: Get a Property Appraisal
An appraisal done on assets owned before marriage helps prove their original value. This is especially useful for real estate or business interests. By establishing a clear baseline, it's easier to separate original property from any value gained during marriage, which keeps the division fair but not necessarily equal.
Working with an Attorney for Separate and Marital Property Conflicts
A good lawyer can make a big difference in a New York divorce. They can organize important records, explain property rights, and help prevent costly mistakes.
An attorney from Divorce & Family Legal in Albany, New York, for example, can assist with gathering proof for separate property and advise on legal steps to keep certain assets protected. Our team also negotiates agreements that protect assets from being considered marital property.
With our expertise, we can guide each step of the process and make sure that property rights are clear. We can help clients work toward the best outcome in the property division process.
The Bottom Line
Keeping good records and working with a skilled attorney are important steps in protecting separate property during a divorce. They can also explain questions like when is property considered abandoned after a divorce in NY? Clear documentation and professional guidance can help ensure that certain assets stay with their rightful owner. Proving what's separate can make the division process smoother and save time and stress.
For those facing a divorce in New York, contacting Divorce & Family Legal in Albany can provide helpful support. Our experienced team is ready to help with all aspects of the property division. Call us to get started.