Due to precautions related to COVID-19, we have expanded our options for remote consultations. Please contact our office to discuss whether a full phone consultation or video conference is appropriate for your situation.

Decades Of Litigation Experience


by | Oct 20, 2021 | Firm News |

By Hope Tuber

One of the first questions arising from a divorce is what happens to marital property or what if only my spouse’s name is on the deed to the house? New York State is an equitable distribution state, and therefore marital property will be divided equitably-not necessarily equally-between the parties. In New York, marital property is defined as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action regardless of the form in which title is held. Therefore, if you purchased a home during the marriage and used money earned during the course of the marriage, then that property is subject to equitable distribution –regardless of title. Of import is that the extent of one spouse’s contribution to the property is irrelevant in the determination of whether something should be classified as marital property.

Thus, anything that is obtained during the marriage may be marital property subject to equitable distribution. As you might expect, there are some exceptions. Clearly, if something is not marital property it is considered separate property. The question to ask is—what then constitutes separate property? First, property acquired before marriage or property acquired by bequest, devise, or descent…thus something you inherit will be classified as separate property—as long as you did not comingle it. Second, compensation for personal injuries regardless of when received—again as long as you kept it in a separate account and did not comingle it. Third, property acquired in exchange for separate property….you inherit $50,000.00 and you buy a car….that car is separate property. Lastly, any property agreed to by the parties as separate property.

So, what’s the practical application? Absent the four categories just mentioned, property acquired during the marriage is subject to distribution. When considering this, people immediately think of the marital estate bought during the marriage.   Additionally, people think of stocks, bonds, cars, and summer homes…however, there are other things that are acquired during the marriage that people need to be aware of.  Consider the following: Pension plans, 401ks, virtually any and all employment related benefits from money earned during the marriage, will be considered marital property-from the date of marriage to the date of commencement. For example, has your spouse made partner in a law firm? That partnership is a martial asset. Please note that if there is marital debt such as credit card debt then that will also be equitably divided.