Definition of Separate Property

In any divorce action, an Albany court must generally resolve a wide range of issues, including the distribution of property. According to New York Domestic Relations Law §236, the court has the authority to equitably distribute marital property between the parties in a divorce. However, each party usually retains any separate property they have.

In the context of asset distribution, NYDRL §236 defines “separate property” as:

  • Any assets you acquired before your marriage
  • Any assets you acquired by inheritance or gift during your marriage
  • Any assets described as separate property in a valid written agreement
  • Any personal injury settlements acquired during marriage

Additionally, any property you receive in exchange for separate property is itself separate under this statute. You may sell your separate property and retain the money you receive for that property. One of our Albany matrimonial attorneys can provide additional information on whether a specific asset is likely to be determined as separate or marital property.

Dividing Marital Property

Any property that is not separate is usually considered marital in nature. Marital property encompasses most property acquired by either party during the marriage, according to NYDRL §236.

Courts usually divide marital property as equitably as possible between the parties. However, courts are not required to divide assets right down the middle, as “equitable” does not necessarily mean equal.

Instead, they may grant one party sole ownership of a given piece of property while granting the other party the monetary equivalent of their share of that property. For example, a court may decree that you own a specific painting while granting the other party in your divorce a monetary award equivalent to a fifty-percent share of the market value of the painting.

Relevant Factors When Dividing Marital Property

Under NYDRL §236, Albany courts generally consider a variety of factors in distributing marital property, including:

  • Tax implications
  • The liquidity of an asset
  • A party’s need to possess an asset
  • Marital waste of assets

Additionally, the court may consider any other factor that it expressly finds to be “just and proper.” As a result, courts must consider each asset distribution process on a case-by-case basis. If you need advice on how a court may distribute property in your specific situation, you can benefit from talking to a matrimonial lawyer in Albany.

Get in Touch with an Albany Matrimonial Attorney Today

The divorce process can often be complex and hard to understand. You will need accurate information about a variety of issues, including the division of your property as a result of your divorce.

An experienced Albany matrimonial lawyer can help answer questions you may have, as well as provide you with the legal resources you need to protect your rights during your divorce. We can also file any legal paperwork necessary on your behalf to help you achieve the best possible outcome.

If you are going through a divorce, do not delay. Call the Albany office of Tully Rinckey PLLC at (518) 218-7100—or email—today.

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