Framework of the Law Regarding Property

Separate Property – property acquired before marriage and property acquired during marriage by way of a gift or inheritance to one party from someone other than the other party; “separate property” was not earned during the marriage by one or both of the spouses and is not usually subject to being divided between them when they divorce.

Marital Property – “Spouses as One” – upon marriage, two separate individuals become, for matrimonial law purposes, one legal entity. It doesn’t matter if one spouse’s earnings bought something; the earnings during marriage belong to both. What was earned during marriage, whether in one spouse’s name or joint names, is marital property subject to being divided between them when they divorce.

Equitable Distribution of Marital Property – In New York, the division of marital property is to be “equitable” and not necessarily “equal”. Courts usually divide most marital property equally. Sometimes in short term marriages, courts might try to put spouses back where they would have been had the marriage not taken place.

Increase of Value of a Marital Asset During Marriage – An active increase in value comes from some direct contribution of a spouse. For instance, one spouse or both spouses make renovations or improvements to property that increases the value of that property. A passive increase in value is where an asset’s value rises and falls based on market conditions or the work of someone other than one of the spouses. A court may choose a date for valuation that is practical so that neither spouse receives more than they should, or a “windfall.”