Property division can be one of the most stressful aspects of a divorce. Your financial future can depend on how your property is divided, and it is essential that you know your rights and which property will be considered yours alone.
What does the law say?
As an equitable division state, New York recognizes two different types of property during a divorce: separate and marital. Marital property includes most of the property that was acquired during the course of your marriage, and in a divorce this is the property that will be distributed during asset division.
Separate property, on the other hand, is yours alone and will not be part of asset division. Which of your assets counts as separate property?
Property that you owned before your wedding
If you brought assets into the marriage—a house or a car, for example—then that property continues to be yours in a divorce.
Gifts and your inheritance
If you received a gift or inherited property during the course of your marriage, then that property is considered your separate property. The exception to this is if these gifts were given by your spouse.
Any compensation you receive for a personal injury case
If you have been injured because of someone else’s negligence, the funds you receive for your recovery are your property. Money received to offset the impact of lost wages due to your injuries, however, will be considered marital property.
Any property that you have specified in a prenuptial or postnuptial agreement
If you and your spouse established a formal agreement, that contract may specify that certain property is excluded from your marital property.
Protecting separate property
If your property becomes blended to the point where it cannot be divided from your marital property, then your separate property may be considered a part of your marital property as a result of this commingling. For example, business owners can protect their business by using only their separate property to fund the business. If they use funds from a shared bank account to support the company when business is slow, they could find that their business is counted as marital property in a divorce.
Creating a fair solution during property division depends on identifying which of your assets are separate and which are considered part of your marital estate.