Determining Marital Property

Identifying Property and Assets for Distribution in a New York State Uncontested Divorce Case

Decisions that must be made in executing and uncontested divorce in New York State include decisions regarding division of assets, property, and debt. In New York, it is better to get divorced uncontested than contested, because in a NY uncontested divorce the parties can control the outcome of who gets what. In a contested divorce the parties leave that decision up to a judge.

Our uncontested divorce lawyers and attorneys have training and experience in executing uncontested divorces in NY State. Located in White Plains, New York (Westchester County) our attorney can represent you, guide you through the process, complete the uncontested matrimonial and divorce forms, make the filings, and undo your marriage for you.

Nuts and Bolts of Identifying Marital Property in an Uncontested Divorce

Not all property held by spouses are marital assets subject to distribution. Only marital property is subject to division. The FIRST THING you must do is identify what the marital assets are as opposed to separate property. This is not such and easy task, because in NY divorce law purposes it does not matter whom the property is otherwise legally titled to. For example, the mere fact that a vehicle is titled to your name only DOES NOT mean that it is automatically separate property. It could still be considered as part of your marital estate subject to distribution.

In addition, personal property potentially subject to distribution is much broader then just tangible property. For example, if one spouse built a business during the marriage the economic value and even hypothetical future earning potential based on past performance could be personal property subject to distribution. If a spouse vested in a pension through employment during the marriage the present value of the pension, or a portion of the future pension payments are considered marital property subject to distribution. How assets get identified and distributed is critical in a NY divorce. This is why it is so important to retain the right uncontested divorce lawyer. Your uncontested divorce attorney will guide you through understanding the nuances of the New York divorce law at the outset to properly identify what is separate property and what is marital property.

Once you property identify the marital estate, the SECOND THING you must do is negotiate a settlement with your spouse. This cannot be done with any degree of accuracy unless you first appropriately identify what is in essence “on the table” subject to distribution. Then, the framework of the negotiation must be focused around what would likely happen in a contested divorce if you left it up to the discretion of a judge. While judges have latitude, they are still guided by the law, and in this case Domestic Relation’s Law § 236, which governs identification and distribution of the marital estate. This is another reason to have our uncontested divorce lawyers on your side – because we understand the framework of what is likely and unlikely, so can effectively negotiate you a settlement that is reasonable based upon what the law requires.

Separate Property not Subject to Distribution in a NY Divorce

In a New York divorce property which is separate and not subject to distribution as part of the marital estate is as follows:

  • All property you had prior to the marriage, whether real or personal
  • Gifts given to you at any time either before or during the marriage
  • Inheritances received during the marriage
  • Personal injury awards or any other awards to compensate you for a loss
  • Any property contracted between spouses in a prenuptial or postnuptial agreement to be separate property that would otherwise be marital property but for the agreement.

While these are seemingly clearly demarked in the NY divorce law domestic relation law DRL § 236 as separate property, nothing is always 100% when it comes to divorce law. For example, there are exceptions when an increase in the value of separate property will be considered martial property. For example, a home that is owned before marriage is upgraded with your spouse’s income, part of the increase in value is martial property. Moreover, there are exceptions to the exceptions. For example, a general appreciation in an asset such as a home or a baseball card collection simply due to market forces is not considered martial property subject to distribution.

Marital Property That is Subject to Distribution in a New York Divorce

The shorthand answer is anything that is not separate property is martial property subject to distribution in a divorce. This is any asset you or your spouse acquired from the date of the marriage through the date either spouse filed for divorce. Literal title to the property, or whose “name” the property is in, does not matter. Such property includes:

  • Home and real estate equity / investments
  • Monies held in a 401k, pension fund, retirement savings, stock and bond portfolios, savings accounts.
  • Accrued pensions
  • Automobiles and other vehicles
  • Equity and the value of a business
  • Future bonuses earned through employment
  • The value of non-traditional investments, such as art work and precious metals, acquired during the marriage with non-separate property, at the time of divorce filing.

We know that you found this page because you are thinking of getting divorced, or may have been served papers, and likely have more questions. We invite you to call us with any questions you may have. We’d love to talk to you, and discuss these and many more New York divorce issues with people like you every day.

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