Searching For A Lawyer By Typing “Best Divorce Lawyer Near Me” means you are looking for an attorney who must know the answer to this importnat question:
How the court views property that was premarital yet another spouse paid taxes and mortgage for many years? How does credit work in divorce on separate property?
If you are the spouse that purchased property prior to your marriage and the non-titled spouse was involved in the improvement of the property, the odds are really against you in keeping 100% of the property as separate and apart from your spouse. In New York, courts will more likely consider any property purchased during the marriage as marital property. That definition is very broad and includes all property acquired during the marriage, unless clearly separate. The key word here is clearly. The courts have defined “clearly” as placing the burden and responsibility on the person seeking the separate property claim to rebut the presumption that the property is marital and that the property is actually separate.
Once you google “Best Divorce Lawyer Near Me” and find the lawyer you trust, have this lawyer explain to you that NY State Legislature specifies that separate property are only one of the following:
- Property acquired before marriage or property acquired by bequest, devise or descent, or gift from a party other than the spouse;
- Compensation for personal injuries;
- Property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
- Property described as separate property by a written agreement.
Even if you are able to show to the Court’s satisfaction that the property is separate, the Court can still say the property is marital. That is because the property has transmuted from separate into marital property. Transmutation is a legal term that is defined as the change of something from one thing to another. In matrimonial law, transmutation occurs when separate property changes into marital property. For example, separate property can be transmuted into marital property when the actions of the titled spouse demonstrate his or her intent to transform the character of the property from separate to marital (see Imhof v. Imhof, 259 A.D.2d 666, 686 N.Y.S.2d 825).
The good news here is that real property like a home does not necessarily fall into this theory of transmutation. The appreciation of, or increase in the value of, separate property is considered separate property, “except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse” (Domestic Relations Law § 236[B][1][d][3]; see Tietjen v. Tietjen, 48 A.D.3d 789, 790, 853 N.Y.S.2d 118). If you are able to prove to the court that the property is separate, the burden that flips to the non-titled spouse to show that the marital residence appreciated in value during the parties marriage and if so, that appreciation was due in part to their efforts. If the non-titled spouse cannot prove that, then the property will not be considered marital property and remain as separate property.
However, Courts have held that the non-titled spouse is only entitled to an equitable share of the marital funds that were used to pay the mortgage, taxes or any “indebtedness” against the property. When marital funds are used to reduce the indebtedness and pay for improvements on property that is the separate property of one spouse, the other spouse is entitled to a credit for his or her equitable share of marital funds that were used to reduce the indebtedness and pay for improvements.
The Courts determine on a case-by-case basis in determining how to distribute a marital asset that was acquired, in part or in whole, with separate property funds. When this occurs, courts in New York have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset. In other words, the courts will initially determine how much a spouse is entitled to a separate property claim, and if so, will deduct that amount from the final value of the property before dividing the remaining value. You will get a dollar for dollar credit for any amounts the court finds and determines as separate property prior to any division of property that the court finds as marital property. That division can be any percentage up to and including a 50-50 split. If the non-titled spouse is entitled to a credit for monies spent on the mortgage and taxes, they will also get a dollar for dollar credit. However, it will only be for the monies spent on the mortgage and taxes and will not receive any monies for the appreciation of the value of the real property.
In sum, when searching for the “best divorce lawyer near me”, you need to make a careful and educated decision who will serve as your attorney. When it comes to property division, the burden is high for the titled spouse to prove that the property is separate. If the titled spouse can meet that burden, the burden then switches to the non-titled spouse to show that the appreciation of the value of the property is due in part to the contributions or efforts of the non-titled spouse. Importantly, courts have consistently held that paying down a mortgage or paying taxes on the property are not enough to meet the standard that the appreciation of the property was due to the non-titled spouse’s efforts. The non-titled spouse will be entitled to a credit for their share of marital funds used to reduce the mortgage and taxes on the property.
Kleyman Law Firm is known is rated as the best divorce lawyers in NYC and the right choice if you are searching for the “best divorce lawyer near me” handling complex, contested and high conflict divorces. The Kleyman Law Firm is located at One Rockefeller Plaza, 11th Floor, New York, NY 10020 and accepts cases in Queens, Brooklyn, Manhattan, Bronx, Staten Island, Westchester and Long Island. For more information visit www.NYC-DivorceLawyer.com or call (212) 401-1977.
