Under New York law, when a married couple decides to divorce, they must divide their marital property in a way that is equitable, or fair. But first, they have to figure out what, among all their assets and liabilities, is marital property and what is separate property. Complicating matters, there is also commingled property.
Generally, property owned by the parties before the marriage is separate property, and property acquired by the parties during the marriage is marital property, but there are some exceptions. For instance, an inheritance bequeathed to one of the spouses during the marriage may be considered separate property. That spouse may be able to keep that property after the divorce.
The category of commingled property includes things that started out as separate property before they became mixed with marital property. This can be especially complicated in cases involving high asset divorce.
For instance, in the example of the inheritance above, imagine that Alex inherits $25,000 from his late aunt. Alex is married to Betty, but this inheritance begins as Alex’s separate property. Alex decides to deposit the money into an investment account that he co-owns with Betty.
Ten years later, Alex and Betty divorce. Alex claims that the investment account should be his separate property because his inheritance was the biggest contribution to the account. The court disagrees, saying that both spouses contributed to the account, making it commingled property. The account has been growing for more than 10 years and should be considered as part of the marital property.
Equitable property division often comes down to negotiation. Sometimes the parties have to identify what they want and what they are willing to exchange for it.
If you are contemplating divorce, it is a good idea to seek out advice from attorneys who have experience in New York divorce law.