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An overview of marital versus separate property in New York

According to the New York Department of Health, there were 58,541 divorces across the state in 2013 alone. At the end of a marriage, one of the issues that couples must settle is the division of their property. In addition to quarrelling over who gets what, couples may dispute what is and is not subject to the property division process. When dealing with such matters, therefore, it may be helpful for people to understand what the differences between marital property and separate property.

Over the course of a marriage, couples commonly earn money and acquire property. With few exceptions, these assets are considered marital property and both spouses are entitled to them. This is the case even if one spouse was the breadwinner and the other was the housemaker. In the state of New York, marital property is divided in accordance with the principle of equitable distribution, according to the New York State Unified Courts System. Thus, couples’ assets are split up based on what is fair and equitable, not what is equal.

Separate property are those assets that belong to only one spouse. This may include property that people owned before their marriage, gifts that were received by only one spouse during the marriage and inheritances that one spouse received while married, among other assets. Generally, each spouse is permitted to keep his or her own property during their divorce. Additionally, property that was acquired in only one spouse’s name during the marriage and was not used for the benefit of the other spouse, property that was acquired using separate assets with the intention of keeping it separate and property that couples have specified is separate in a written agreement may be excluded from the property division process.

The emotions that are often at play at the end of a marriage may cause challenges for couples as they attempt to settle the division of their assets. Working with an attorney may help them to effectively and reasonably resolve their issues so they are able to move forward with their lives.

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