Identifying separate property in a divorce

When New York couples decide to divorce, they will need to list all their assets, identifying both marital and separate property, as they prepare to negotiate the division of property. Understanding how courts view property is important before negotiations start.

What is defined as separate property?

Separate property is defined as an asset that a person acquired before marriage. In many cases, both spouses enter the marriage with savings, personal accounts and physical properties. However, whether that property is considered separate when a marriage ends depends on a variety of factors. These include:

• Whether the couple signed a prenup or postnup listing separate property
• Whether the separate property was used for marital expenses
• Whether one spouse invested time or money in the separate business or property of the other spouse
• Whether there is a presumption that part of the separate property was used as a gift for the other spouse

What property is not divided during a divorce?

As the divorce process develops, there are some assets that will not be split during the division of property. Real estate and personal property acquired before the marriage or that a person inherited or was given as a gift, except by their spouses, during the marriage does not typically get divided. In addition, any property listed as separate in a prenup or postnup will not be included. Any increase in value of property that was already established as separate is also often left of out the property division. Any money awarded in a personal injury case remains the property of the spouse it was awarded to.

Careful consideration of how property was used and improved or how separate money was spent during the marriage will help in determining separate property. If you and your spouse fail to agree on this, the court will go through a process of establishing what is marital and what is separate and then divide the marital property equitably. If you have questions about this process, your divorce attorney may help you understand how it works.