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What is Considered Marital Property in New York?

What is Considered Marital Property in New York?

In divorce proceedings, New York state law recognizes two types of property. Separate property consists of property, investments, and cash that each of you had prior to the marriage. Marital property consists of all property, cash, and investments the two of you accrued during your marriage.

What Are More Specific Examples of Separate and Marital Property?

Any real or personal property you owned before your marriage is separate. Any such property you bought together is marital property except for any separate property contributions that led to acquiring it. For example, if you exclusively used separate property funds to make a down payment, that's still considered separate.

Gifts to each other are marital, but gifts or inheritances that one of you received from a third party are separate. Advanced educational degrees, however, and the resulting qualifications to run businesses are considered marital.

Cash, securities, pensions, and retirement accounts that you acquired together are marital. Injury compensation unrelated to wage losses or earning capacity, however, is considered separate. Property that you acquired exclusively through exchanging separate property is also separate.

In many cases, any increase in your separate property's value remains separate unless that property has been commingled with your spouse's. For example, if you had a separate antique made more valuable by your spouse, then that antique is considered commingled marital property.

Finally, any separate property the two of you specifically define as such in a valid prenuptial agreement will remain separate.

What Happens to Marital Property in a Divorce?

New York is an equitable distribution state, which means that the property will be split up fairly according to 13 specific factors. These factors are:

  • The length of your marriage
  • The income and property that each of you holds
  • The loss of inheritance or property rights resulting from the divorce
  • The loss of health insurance benefits from the same
  • Any maintenance or support the court has imposed
  • Whether or not one spouse made contributions to the other's separate property
  • The potential liquidity, or conversion into cash, of all marital property
  • The future financial circumstances of each spouse
  • The difficulty of determining certain assets like business interests
  • Tax consequences
  • Whether either spouse wasted or used up marital property during proceedings
  • Whether either spouse dispensed of marital property for below fair market value during same
  • If minors are involved, the need of the custodial spouse to use the marital household and its contents

If you need help ensuring your separate property stays separate, contact Friedman & Friedman PLLC, Attorneys at Law, at (516) 688-0088.


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