Figuring out marital and separate assets during divorce

On Behalf of | Mar 16, 2022 | Divorce |

As a resident of New York starting the divorce process, you will most likely need to negotiate with your spouse the division of assets. However, not all assets will be available for division; some assets are considered marital assets, and others are considered separate or individual. To further complicate matters, assets sometimes get mixed up together, or commingled, which means only a portion of the value of the asset would be considered for the divorce settlement.

Identifying marital assets

For the purpose of the division of property during divorce, marital assets include any assets gained during the marriage, whether they were bought by one spouse only or saved in an account under one spouse’s name. Marital property includes:

  • Any salary earned by either spouse during the marriage
  • Any savings or investments made during the marriage
  • Any real estate bought during the marriage
  • Any vehicles bought during the marriage
  • Any bonus or additional income earned during the marriage
  • Any contributions made to retirement or pensions during the marriage
  • Any other physical property acquired during the marriage

Identifying separate assets

When dividing assets during divorce, spouses will need to identify separate property, which refers to any assets acquired before marriage as well as inheritance and individual gifts received during the marriage and any property bought with that inheritance. Earnings, savings and retirement contributions from before the marriage are also considered separate property as is any settlement received from a personal injury case.

Marital and separate assets can get mixed up as the marriage progresses. This is called commingling, and it happens in most marriages. An example of this is marital funds used to make improvements to a home bought by one spouse before marriage. During a divorce, the home is separate property except for the increased value resulting from the use of marital funds. During the division of property, this will also need to be considered.