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Who Gets What In Our Divorce? Marital Property Vs. Separate Property

When a couple decides to get divorced, one of their main concerns will typically be about the “things” – the physical items accumulated over time throughout a marriage, and also the non-tangible items. Couples who are married for long periods of time will inevitably have amassed all sorts of property together -furniture, antiques, photographs, cars, jewelry, electronics, property, inheritances, lottery winnings, personal injury awards, gifts from each other, gifts from family members and friends, pensions, IRAs, stock options… the list goes on and on. The question is, who gets to keep what?

The law subscribes to the theory that a marriage is an economic partnership. Both parties contribute to the economic wellbeing of their marriage while they’re together, and should therefore both benefit in some form upon its dissolution. Some couples will obviously have accumulated more property than others, which can create more complicated problems. Who bought it? When was it purchased? What funds were used to purchase it? Whose name is it in? What if it’s in both parties’ names? Does it matter?

There are many more questions than may initially meet the eye. For example, title is not dispositive in New York. Just because the Porsche you drive is titled in your name doesn’t necessarily make it “yours” to keep in the divorce. Another example: just because you paid for 85% of the timeshare in the Bahamas also doesn’t make it 100% or even 85% “yours.” There are many factors that will affect who gets what – and, of course, there is also the big picture to think about. (How will demanding ownership of the antique clock, the stainless steel kitchenware, and the Apple computer affect your odds at claiming part of your spouse’s pension or baseball card collection? Will it?)

You may have heard the terms “marital property” and “separate property.” The first thing a court must do in figuring out who gets what in any given divorce is identify each asset ( and liability, i.e. debt) as either martial or separate. This is step one. Once a court has these two distinct categories delineated, it can divide the assets and debts appropriately.

Put simply, marital property is property that was acquired by either or both spouses during the marriage. Separate property is property that was acquired before the marriage, including inheritances or gifts from an individual other than the other spouse.

For example, if a husband opened a bank account and put in $50,000 prior to the marriage, that $50,000 would remain his upon a divorce – unless he commingled the funds with money earned by him or his wife during the marriage. The law says that once you commingle the money, it becomes “transmuted,” i.e. marital. (There may potentially be ways of tracing the original funds, but it gets very complicated to do and is hard to prove.)

Another interesting example is the concept of dividing a pension. The portion of the pension that was earned during the marriage is technically marital property. Lawyers and/or a court will have to calculate the marital portion using a certain mathematical formula called the Majauskas formula in order to get a sense of what amount is up for division to the other spouse. As you can already glean, the division of property upon divorce – i.e. “equitable distribution” – in New York can end up being highly complex, given all the nuances and intricacies of the laws, as well as the uniqueness of every single couple’s situation.

Some (fortunate) couples are able to work out this portion of their divorce in pre-trial settlements. Settling this and crossing this large item off the Divorce To-Do List can make the divorce process much easier for many couples. But many couples are not able to reach agreements on this matter. Lawyers can help their clients figure out what’s important and what the best strategy may be in any given situation.

Contact a New York attorney to help you through your divorce. The experienced family / divorce / matrimonial lawyers at the law firm of Peter L. Cedeño Associates would be more than happy – and qualified – to assist.




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