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What is separate property in marriage?

Whether you are negotiating a prenuptial agreement or facing the prospect of divorce, you may hear the term "separate property" come up when determining what belongs solely to you and what, under New York law, is considered marital property that qualifies as joint assets when determining ownership before or after marriage or divorce. But what is separate property, exactly, and what qualifies as solely yours versus the joint property of you and your spouse under New York law?

According to the New York State Unified Court System, separate property is property that you owned before the marriage, or that can otherwise be classified as solely yours rather than the joint property of the marriage. Examples of separate property are things such as homes, real estate or business ventures you owned prior to the marriage, to which your spouse made no substantial contributions to over the course of the marriage.

Determination of separate property versus marital property are made by New York's Equitable Distribution Law, which looks at both the economic and social contracts inherent in a marriage. Other types of assets that may qualify as separate property under this law include gifts made solely to you rather than to your spouse, or inheritances received solely in your name. Anything that does not qualify as separate property will be eligible for equitable distribution, which will split your assets between the two partners in the event of divorce. This may not be an even split, but will instead be determined based on the court's determinations of need, ownership and eligibility.

This has been an informational blog post intended for reference purposes only.

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