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Staten Island Divorce Lawyer In New York Explains How Property Is Divided

top divorce lawyer in NYC
Staten Island Divorce Lawyer In New York Explains How Property Is Divided

Marital Property, Non-Marital Property and Equitable Distribution

When a couple divorces in New York, couples can reach an agreement on property division that meets both spouses’ needs. The courts encourage couples to work together to decide how to split assets and debts. Generally, the judge will approve a settlement agreement if it’s fair to both spouses.

However, as Staten Island divorce lawyer, we see many cases where a couple can’t agree on how to divide marital assets, a judge will divide property equitably, which may or may not result in an equal property division. The judge will determine whether each piece of property or debt belongs in the “marital” or “non-marital” categories, and will then divide the estate using statutory factors. The basis for an equitable property division is what a judge determines is fair, considering what each spouse contributed to the marriage and what each spouse will need to move forward.

Marital Property

Staten Island divorce lawyer, Val Kleyman, says that under New York’s divorce law, courts only divide marital property. Generally, marital property is all property obtained by either or both spouses during the marriage, regardless of who bought it. Example of marital property include:

  • each spouse’s income earned during the marriage
  • property purchased with either spouse’s income
  • property the couple purchased while married (i.e. house or car)
  • retirement benefits each spouse earned during the marriage
  • appreciation of marital property while the couple was married


Non-Marital Property

Courts do not divide couple’s separate property, and each spouse gets to keep their own separate property, except to the extent that the other spouse contributed to the property’s increase in value. Separate property includes:

  • property either spouse acquired before marriage
  • property either spouse received individually as an inheritance or gift (except from the other spouse)
  • compensation for personal injuries (damages for pain and suffering or punitive damages)
  • any property characterized as separate in a valid pre or postnuptial agreement or other written contract
  • property acquired from the proceeds or appreciation in value of separate property (unless appreciation is partly due to the efforts or contributions of the other spouse)


If property acquired in one of these ways is comingled with marital property, the court may decide that it became marital. The court may also treat a non-marital property as marital if the spouse of the property owner uses the property in a manner that demonstrates sufficient control.

How to avoid commingling non-marital property

In order to keep exclusive rights to your separate property, one must avoid commingling it during the marriage. Although, this is easier said than done. You can keep your cash and financial accounts separate, but this is often not enough. And real and personal property can become commingled over time by how they are used by spouses. The best way to ensure your property remains separate is to memorialize your understanding with your spouse in a pre or postnuptial agreement. If you are considering a divorce and are worried about whether your property may not be considered marital, call our office and one of our experienced attorneys will gladly speak with you.



If you have any questions, please contact the Kleyman Law Firm, qualified Top Divorce Lawyer in NYC,