What is Separate Property in New York Divorce Asset Distribution?

During the process of marriage dissolution in New York, one of the most important factors influencing the case is determining how the assets will be divided.  The first stage in the procedure for asset distribution is to itemize all of the various properties associated with the married couple.  During the second stage, the assets are classified as either separate or marital.

According to New York divorce law, separate property includes:

  • Property acquired through a bequest, like an inheritance
  • Property acquired before the marriage
  • Gifts to one spouse from anyone besides the other spouse (although this can be difficult to prove)
  • Property designated as separate by a premarital or marital agreement
  • Appreciation of separate property so long as the other spouse didn’t contribute to the appreciation
  • Compensation for personal injury claim winnings in the form of pain and suffering or punitive damage awards
  • Engagement rings

In New York there is a strong presumption that all property acquired during the marriage is marital.  A party arguing that property is separate and not marital property must prove it fits one of the definitions for separate property.  For example, if you had money in a 401K prior to the marriage but are unable to come up with an account statement showing how much, it may be impossible to prove the separate property claim.  Marital property can be used to describe an asset that is acquired by either party during the marriage without regard to who actually owns it.  For this reason, marital property might include portions of personal injury awards for lost wages, business interests, bank accounts, pensions, real estate, or even professional licenses.

As you might imagine, the process of inventorying all the items that can be classified as marital is an important step in any New York divorce.  Details are extremely important and the list of the assets you bring to your attorney’s office should be reviewed carefully.  Start making your list early on to maximize the chances of an accurate division of marital property.