Assets Not Subject to Division in a New York Divorce

In New York State, generally, property acquired during a marriage is considered marital property and is subject to equitable distribution upon divorce. This means that the court will divide the property fairly between the spouses, regardless of who contributed more to its acquisition. However, there are exceptions to this rule.  If you have an asset that falls under the exception as outlined below, it is important that you maintain that asset separately in an account, which does not contain marital funds. If it is comingled, a Court may determine that separate asset to be transmuted into marital property.

Gifts and Inheritances

Assets that were acquired by one spouse as a gift or inheritance are generally considered separate property and are not subject to equitable distribution in a divorce. However, there are exceptions to this rule. For example, if a gift or inheritance is commingled with marital property, it may lose its separate property character.

Assets Acquired Prior to Marriage

Assets that were acquired by one spouse prior to the marriage are generally considered separate property and are not subject to equitable distribution in a divorce. However, there are exceptions to this rule. For example, if an asset is appreciated in value during the marriage, the appreciation may be considered marital property.

Assets Protected By Premarital Agreements

A premarital agreement, also known as a prenuptial agreement (also referred to as a prenup), is a contract that is entered into by two people before they get married. A prenup can specify how assets will be divided in a divorce, as well as other issues such as spousal support and debt allocation. Prenups allow parties to specify what income, assets, and debts will be deemed separate property in the event of divorce.

In New York, premarital agreements are generally enforceable as long as they are entered into voluntarily, without coercion or undue influence, and with full disclosure of all assets and liabilities.

Consulting with an Attorney

If you have any questions about whether an asset is considered separate property or marital property, you should consult with an attorney. The attorneys at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP can help you to understand the laws surrounding marital property and develop a plan for protecting your assets in a divorce.