Not all property is subject to equitable distribution in New York. Assets and debts are considered either “marital property” or “separate property.” Only marital property is subject to equitable division in a divorce. Each spouse gets to keep their separate property.

Marital property covers any assets or debts that were obtained during the marriage. It does not matter who purchased the property, whose name is on the ownership documents, or who took on the debt. If it was acquired while you were married to your spouse, it is considered fair game in the eyes of the law. 

Common examples of marital property in New York include:

• All income earned throughout the marriage
• All debt acquired throughout the marriage
• The value of any benefits accrued throughout the marriage
• Any appreciation of marital property accrued throughout the marriage
• Any assets purchased with either spouse’s income throughout the marriage, including a home, a vehicle, electronics, furniture, or other valuable items

Separate property refers to assets or debts that were acquired beforethe marriage began or after divorce was initiated. Certain other types of assets, including inheritances, may be considered separate property even if they were obtained during the marriage.

Examples of separate property include:

• Assets acquired before the marriage began or after the initiation of the divorce
• Assets a spouse received as part of an inheritance or lifetime gift
• Personal injury compensation awarded to one spouse
• Assets obtained via appreciation or proceeds of other forms of separate property

In some situations, separate property can becomemarital property. Whether a lucrative asset is considered separate or marital property is often the source of much conflict in a contested divorce case. Separate property can become subject to equitable distribution if it “comingles” with marital assets. Commingling refers to situations in which separate property irreversibly mixes with marital property, making isolation difficult, if not impossible. 

Commingling can also occur when your spouse invests marital resources into your separate property. For example, say you bring a house into the marriage. Because you obtained the real estate prior to being married, the house is initially considered separate property. However, over the course of the marriage, your spouse spends a considerable amount of their own income to facilitate refurbishments and expansions. The repairs and new additions lead to a measurable appreciation in the value of the real estate, so the property is now likely considered “marital property” in a divorce. 

Efforts to insulate separate property and protect these assets from becoming marital property must be implemented proactively. Once commingling occurs, it cannot be undone. A carefully drafted prenuptial agreement can designate assets as “separate property” even if those assets would otherwise constitute marital property. 

Our New York City equitable distribution attorneys can thoroughly assess your circumstances and advise you on which of your assets are likely to be considered separate property or marital property. Our Manhattan equitable distribution lawyers at Roven Law Group, P.C. understands how much is at stake, which is why we will work closely with you to develop a strategy that accounts for your priorities and seeks a just outcome.