Marital vs. Separate Property in a New York Divorce (DRL § 236(B)(1))

In a New York divorce, the line between marital property and separate property decides what gets divided and what one spouse keeps. Marital property is split between the spouses by equitable distribution. Separate property stays with the spouse who owns it.

Most property fights in a New York divorce are not really about the dollar amount. They are about which side of that line an asset falls on, and whether separate property stayed separate or quietly turned into marital property along the way.

This page covers how New York defines marital and separate property, what stays separate, how separate property becomes marital through commingling, and how the increase in value of a separate asset gets treated.

What Is the Difference Between Marital and Separate Property in a New York Divorce?

Marital property is almost everything acquired during the marriage. Separate property is what one spouse brought in or received individually. Domestic Relations Law § 236(B)(1) draws the line by timing and source, not by whose name is on the title.

Marital property includes income earned during the marriage, the home and accounts built during the marriage, and retirement contributions made during the marriage, even when titled to one spouse alone. The default assumption is that property acquired between the wedding and the start of the divorce is marital. The spouse claiming an asset is separate carries the burden of proving it.

What Counts as Separate Property in New York, and Does It Stay Yours?

Separate property is the property the law lets a spouse keep, as long as it kept its separate character. It includes:

• Property owned before the marriage: what you brought into the marriage.
• An inheritance: received by one spouse alone, before or during the marriage.
• A personal gift from someone other than your spouse: a gift to you individually.
• Compensation for personal injuries: the part meant for pain and suffering, not lost marital earnings.
• Property traded for separate property: what you bought purely with separate funds, kept separate.

Separate property stays with its owner in equitable distribution, but only if it can still be identified as separate at the time of the divorce. That last condition is where many separate-property claims fall apart.

How Does Separate Property Become Marital Property in New York (Commingling and Tracing)?

It becomes marital when it is mixed with marital money so thoroughly that it can no longer be told apart. This is called commingling. Deposit an inheritance into a joint account that both spouses use, or pour premarital savings into a jointly titled home, and the separate funds blend into the marital pot.

The way to protect a separate claim is tracing, which follows the money from its separate source through every account and transaction to show what part remains separate. The spouse who kept statements, records, and a clean paper trail can often preserve the claim. The spouse who ran everything through joint accounts and kept nothing usually cannot. Our NYC divorce attorneys build the tracing record from documents, because in a New York divorce a separate-property claim is only as strong as the proof behind it.

Is the Increase in Value of Separate Property Marital in a New York Divorce?

Sometimes, it depends on why the value went up. New York draws a line between two kinds of growth. Passive appreciation, in which a separate asset grows on its own through market forces with no effort from either spouse, generally remains separate. Active appreciation, in which the asset grew because of a spouse’s efforts during the marriage, can have a marital share.

A premarital brokerage account that simply rose with the market is usually still separate. A business one spouse owned before the marriage that grew because both spouses worked to build it can carry a marital component in that growth. These cases turn on evidence of who did what, and they often call for the outside professionals we retain to value the asset and separate passive growth from active growth.

How Our Attorneys Build the Tracing Record in a New York Property Division Case

The work starts with documents and starts early. Our attorneys gather the account statements, deeds, gift and inheritance records, and transaction history that show where separate property came from and where it went. Where an asset is complex, like a business or a commingled investment account, we bring in forensic accountants and valuators to trace the funds and pin down the marital and separate shares.

We do this from the first conference because the records that prove a separate claim tend to disappear once a divorce is underway. The spouse who documents the trail keeps the leverage.

Talk to Cedeño Law Group About Marital and Separate Property in Your New York Divorce

What is separate is worth protecting, and what is marital is worth a fair share. Cedeño Law Group prepares every property case as if a judge will divide the estate after reading the whole record. Call us before you agree to a division of your property.

Updated 2026. This page reflects the definitions of marital and separate property under Domestic Relations Law § 236(B)(1) as in effect in 2026. It is general information, not legal advice.

For more laws, visit our New York Divorce and Family Laws page.