MARITAL PROPERTY AND SEPARATE PROPERTY DISTINGUISHED - SUPREME COURT DIVORCE



In 1980, New York passed what is called the equitable distribution law, which in turn changed  the entire theory of marriage and property rights. Since the passage of this law, the definition of marital property in New York has been very broad, including all property unrestricted by which of the spouses has title ownership. The theory behind this change is that marriage is an economic partnership to which each party contributes as spouse, parent, wage earner, or homemaker, and whatever one partner creates in the way of property and wealth is a product of the partnership that should be distributed fairly and equitably between them on divorce.

The beginning date for the accumulation of marital property is the date of marriage. The cut off is the date of the commencement of a divorce action and/or entry into a separation agreement by the parties or the dissolution, annulment or declaration of the nullity of a marriage or proceedings after a foreign one party divorce.  Therefore, from the date of the marriage, almost everything, with narrow exceptions, that a couple purchases, whether jointly or individually, becomes marital property subject to being divided pursuant to the laws of New York.

Clearly the statutory intent of the equitable distribution law in New York is that the term ''marital property'' is meant to be broadly construed while the term ''separate property'' is meant to be narrowly construed.   Because of such the general rule is that “Anything acquired during the marriage is presumed to be marital property and the burden is on the spouse who contends that the property is separate to prove it”.

Separate property remains that of the spouse who has title and the following are broad general rules for determining what is separate property and thus not subject to equitable distribution.  Property acquired either before date of marriage or after commencement of action to end marriage, property acquired by inheritance, property acquired as gift from third party, property acquired as compensation for personal injury, property defined as separate in properly drafted pre- or postnuptial agreement and property acquired in exchange for separate property.

 This is not legal advice and should not be viewed as such.  No advice is given until there has been an actual consultation with the attorney.  The statements herein are not advice and no one should act according to such until they have obtained the oral advice of an attorney with regards to these and all legal matters.