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What Property Can I Keep in a Divorce?

The loss of assets is a huge concern in any divorce. People can lose sleep worrying about what they will gain or lose, depending on their needs. Assets include everything from your immediate savings, income, and spending to your physical property, such as the homes, cars, and so forth.

Here are the two forms of property you can keep in a New York divorce.

Separate Property

Separate property is assets that originate outside the marriage. They are not a part of the immediate family, so the law assumes that they belong to you alone. There can be varying standards for separate property across state lines, but generally, separate property falls into three categories.

Property You Owned Before the Marriage

Since you were not married at the time of purchase, the law assumes that you own any of this property outright. This could even include a home that you eventually shared with your spouse.

Property Given to You by Someone Outside the Marriage

The law assumes that any gifts you receive from a friend or family member are intended for you alone. Your spouse should not have any claim to these items.

Property You Inherited

Just like gifts, inherited property is intended for you alone, and your spouse should not be able to claim it.

Separate property, however, can become commingled. Let’s consider a home you purchased before your marriage. Generally, this is considered separate property. However, if your spouse moves in and contributes to the home, it can become commingled. For instance, if they become a stay-at-home parent, managing and maintaining the home, they can argue for partial ownership in court.

Talk with your attorney about any separate property your spouse contributed to in any way. You may need to work out arguments for your sole ownership.

Property to Which You Are Entitled

Any property that isn’t separate is normally considered “marital.” Typically, the law assumes that any money you spent during the marriage was for the benefit of the family, so all purchased property is co-owned by each spouse.

During a divorce, courts must determine what to do with this marital property. In most states, courts use an equitable division of assets, meaning they divide property according to fairness. Nine states still use a community property division model, attempting to divide all assets among the spouses 50/50.

New York is an equitable division state. If you wish to keep property, you must prove that you are entitled to it, and your keeping it is the fairest solution. There are several ways to do this, but here are two of the more common arguments for entitlement.

You Are the Primary User of the Property

Imagine you have a precious collection, something you’ve accumulated since childhood. It could be dolls, comic books, video games, etc. Technically, any new pieces you bought while married are considered separate property. However, your spouse has no interest or connection to the collection. Even if they gave you some new pieces as a gift, you can still make a clear argument that you are the collection’s primary owner, and you deserve to keep all the pieces as a single item.

You Contributed to the Property

Your degree of contribution counts toward your degree of entitlement. A common example of this is a work-from-home parent. This person often manages not only the children, but they also manage the home, too. They typically keep the place cleaned and maintained, and they manage repairs, additions, remodeling efforts, and so on. Even if this spouse made no financial contribution to the home, they could still be entitled to keep the home based on their efforts.

Strategize With Your Attorney

Any property that isn’t obviously separate could be contested in court. Hurt, angry spouses often attempt to keep certain property simply out of spite. For any of this contested property, you must make a valid argument for your entitlement to that property.

Make sure to work closely with your lawyer, preparing your case for each piece of property you believe you deserve. With strong reasoning, you may be able to keep what is rightfully yours.

For help protecting your property in a divorce, reach out to our firm for a free consultation. You can call us at (516) 514-3868 or contact us online.