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What Is Separate Property In A New York Divorce?

In New York, property division during divorce is subject to equitable distribution, meaning property is divided fairly based on the court’s consideration of factors such as the length of the marriage, each spouse’s health and age and the spouses’ incomes and assets. An important distinction to understand is the difference between marital property and separate property. Marital property — assets acquired during the marriage — is divided between the two parties. On the other hand, each partner gets to keep their separate property.

What is separate property?

Immune to equitable division, separate property is not part of the marital estate and includes:

  • Any property named as ‘separate property’ in a pre- or post-nuptial agreement
  • Property acquired before the marriage, such as a house or car, purchased before you got married
  • Money acquired before the marriage, such as a personal savings account with income you earned before your union
  • Compensation from a personal injury claim, settlement or jury verdict
  • Assets earned from the proceeds or the appreciation of separate property, for example, equity in a house or funds from an investment made before the marriage commenced. However, there is an exception: if your spouse contributed to that appreciation, the property may be subjected to division.

You might have comingled separate property with marital property during the course of your marriage, which is fairly common. Perhaps, you mixed bank accounts and investments, or you added your spouse to the deed on a home you purchased before the marriage. In this case, your separate property may become marital property. A judge may divide it via equitable distribution laws.

Of course, if you and your spouse amicably decide how to divide your property, you can bypass the court’s discretion. With the help of a Queens divorce lawyer, you can split up assets and possessions according to you and your ex-spouses wishes. 

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