In a divorce case, the concept of separate property is crucial for preserving individual assets. Whether you’re filing for legal separation or divorce, knowing what constitutes separate property can greatly impact the division of assets. Here’s a breakdown of what qualifies as separate property:
Pre-Marital Assets: Any real or personal property you obtained or owned before the marriage is considered separate marital property.
Inheritance or Gifts: Property received as an inheritance or gift from someone other than your spouse during the marriage is typically categorized as separate property.
Personal Injury Compensation: Compensation received for personal injuries unrelated to the loss of wages or earning capacity during the marriage is also considered separate property.
Exchanges: Property acquired in exchange for your separate property during the marriage retains its separate property status.
Value Increase: Any increase in the value of your separate property, except if it’s due to contributions or efforts from your spouse or yourself during the marriage, is still considered separate property.
Written Agreements: Property explicitly defined as separate property in a written agreement between you and your spouse maintains its separate status.
During legal separation or divorce in New York State, you and your spouse have the opportunity to agree on the division of marital and separate property. If no agreement is reached, the court will intervene, conducting a trial to determine which assets fall into each category and to establish a fair and equitable division of marital property. Keep in mind that “equitable” doesn’t necessarily mean “equal” – the court aims for fairness rather than an even split.
Crucially, as long as you haven’t mixed or commingled your separate property with marital property, or transmuted separate property into marital property, your separate assets remain yours after the divorce. Similarly, your spouse’s separate property remains their own. The court will confirm this distinction, ensuring that your separate property remains with you, and your spouse’s separate property remains with them.
However, a word of caution: If you’ve mixed or commingled your separate property with marital assets, the court might consider part or all of your separate property as marital property and allocate it between you and your spouse. It’s important to note that this rule generally doesn’t apply to real estate, especially in the case of the marital home. A separate property contribution to the purchase of the marital home typically retains its separate property status, ensuring you can reclaim your contribution when the house is sold. Protecting your separate property is essential, and understanding these guidelines can help you navigate the complexities of divorce proceedings.
Divorce is ugly and we all know it. The good news is that having a good attorney on your side can provide you with warmth, comfort and security in this difficult situation. We hope you did not have kids before the divorce, but if you did, we will try to help everything related to custody go smooth as well. Whether you are facing a contested or uncontested divorce you can reach out to our Queens Divorce Attorney today to schedule & fast & free legal consultation.
Aronov Esq Contested Divorce Lawyer 98-14 Queens Boulevard Rego Park, NY 11374 (718) 206-2050 https://
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