What is separate property in a divorce?

A divorce can cause a lot of uncertainty. You may wonder about how much time you’ll be able to spend with your children, whether your retirement savings will be divided, how your property and assets will be split, whether you’ll be able to retain your marital home and much more.

Property division can be a complex issue in many divorces. Splitting one household into two can grow quickly contested as both spouses wish to retain their fair share. New York follows equitable distribution guidelines in splitting the property and assets of spouses, meaning that courts split all marital property equitably, or fairly. However, separate property remains separate. What do courts consider as separate property?

Determining what is separate property

New York courts define separate property as property owned by one spouse prior to the marriage, as well as property inherited by or gifted to one spouse during the marriage. After distinguishing marital from separate property, courts divide marital property according to equitable distribution guidelines. Examples of separate property include:

  • A home or other property owned by one spouse prior to the marriage
  • Property obtained by one spouse with intentions of keeping it separate
  • An inheritance or gift to one spouse before or during the marriage
  • The personal injury award of one spouse
  • Property, assets or debts kept separate as stated in a prenuptial agreement

While this is not an exhaustive list, generally, if you kept the property or assets separate, you may attempt to exclude it from property division guidelines. It can be complicated to distinguish separate property from marital property, depending on the property or asset, and you may have to prove your separate ownership.

Prenuptial agreements can assist in protecting your separate property

An effective tool to proactively distinguish marital property from separate property is a prenuptial agreement or prenup. If you have substantial assets or debts, real estate, a business, an approaching significant inheritance or more, you may want to consider drafting a prenup prior to your marriage.

Prenups can protect the financial interests of you and your future spouse in the event of a divorce. While these can be controversial, considering the property and assets you may want to protect in a divorce can significantly ease the property division process.

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