Published On: February 9, 2024

Is New York a Community Property State?

Going through a divorce is always difficult. You will have to deal with issues such as the residential requirements for divorce, property division, spousal support, and child custody and visitation. You might wonder whether New York is a community property state. However, New York is an equitable distribution state which will be discussed in the following sections. 

An experienced New York divorce lawyer can help you so that you know what to expect. Attorney Ryan Besinque has years of experience helping his clients with property distribution matters. He may be able to help you with your case. Whether your divorce is a simple one, your ex-spouse is dragging the divorce process, or you and your spouse are having trouble with asset division, attorney Besinque is here to help.

What is a Community Property State?

A community property state refers to a legal framework that affects asset ownership and division within a marriage. When a state adopts community property laws, certain rules come into play regarding the classification of assets and debts acquired during the marriage.

In a community property state, most assets and debts obtained or accumulated by either spouse during the marriage are considered community property. This means that both spouses have equal ownership and responsibility for these assets and debts, regardless of who obtained them. When a couple in a community property state goes through a divorce, the general practice is to divide the assets equally between the spouses, although there are exceptions to this rule. If one spouse passes away, the portion of community property owned by the deceased spouse usually transfers to the surviving spouse, unless there is a valid will stating otherwise.

To maintain the separation of assets acquired before the marriage, it is advisable to keep such assets solely in one’s own name. Adding a spouse’s name to ownership documents, transferring assets into joint accounts, or using them for joint purchases can blur the distinction between separate and community property.

In some cases, community property may be sold and divided as part of the divorce settlement. However, if the divorcing couple can communicate effectively, they have the option to reach a mutual agreement on a distribution plan that suits their specific circumstances.

It’s important to bear in mind that in community property states, both spouses usually share equal responsibility for any debts accumulated during the marriage, even if only one spouse incurred the debt. This shared responsibility is a key aspect of community property laws.

The concept of community property laws may seem unfair if an individual has to give up half of their retirement savings and earnings to their ex-spouse. However, these laws can also provide support to individuals who were financially dependent on their partners, such as stay-at-home parents who didn’t have their own income or savings.

Is New York a Community Property State?

New York was once a community property state, however, that is not the case any longer. Instead, it is now an equitable distribution state, which means that all property acquired throughout the marriage in Manhattan or the New York City area, is distributed in a way that’s considered equitable among the spouses.

It’s important to know that “equitable” doesn’t necessarily mean that the property is split evenly between the couple. Instead, it means that marital property is divided fairly.

New York Marital Property Laws

New York Marital Property Laws New York is guided by the equitable distribution principle for the division and administration of property during divorce. Each spouse is entitled to the management of any property and income that was acquired during the marriage. The decision as to who is the owner of which asset does not determine how assets will be divided. The equitable distribution of assets is decided by the judge which may or may not be an even split.

New York also adopted the Uniform Disposition of Community Property Rights at Death Act. This law aims to preserve community property ownership rights for each spouse who moves from a state of community property to one that is not. Before equitable distribution was implemented, property divisions were based solely on the title of the property. This was the rule regardless of whether each spouse paid for the mortgage or whether one of them was a homemaker. Equitable distribution is designed to give equal treatment to all assets, taking into consideration each spouse’s individual contributions and needs.

Speak to an experienced New York divorce attorney if you have faced issues with property distribution during your divorce. A skilled lawyer may be able to help you understand your roles and responsibilities as well as what you should do when faced with a certain situation. Contact us today to schedule a consultation. 

What is the Difference Between Marital and Separate Property?

Some people may be confused when it comes to marital and separate property when going through a divorce. Your family law attorney may be able to help you to get a better understanding of the differences between these types of property.

New York divorce lawyer

Marital property is the property that the couple acquired during the marriage. It doesn’t matter if those things were gained by only one spouse or by both, jointly. This is the property that gets distributed as part of the divorce settlement.

Meanwhile, separate property is the property that either party acquired before the marriage took place. Whether the person purchased it or inherited it as a gift, these items remain separate during the divorce.

The following are considered separate property and not subject to division per the divorce settlement:

• Any property acquired by either spouse prior to the marriage.

• Gifts or inheritances left to one only one of the spouses.

• Personal injury settlements awarded to only one spouse.

• Property deemed separate in a prenuptial agreement or postnuptial agreement.

All other property would be considered marital property and would be equitably distributed as part of the divorce settlement.

Can Separate Property Become Marital Property?

When navigating the division of assets in marriage, it’s crucial to understand how separate property can transition into marital property. In New York State, property acquired during a marriage is typically marital property, while assets owned prior to the marriage or received individually as gifts or inheritances are considered separate property. However, these classifications can change over time due to two legal processes: transmutation and commingling.

Transmutation happens when separate property is legally converted into marital property. This can occur if an asset owned by one spouse before the marriage is retitled to include the other spouse, or if separate funds are invested in shared assets like the marital home. Such actions may lead to a reclassification of the property from separate to marital.

Commingling involves the mixing of separate and marital assets to the point where they can no longer be differentiated. For example, if one spouse receives an inheritance and deposits it into a joint bank account used for marital expenses, this inheritance could be deemed commingled. As a result, tracking the original separate funds becomes challenging, and the asset may be treated as marital property during a divorce.

Understanding the potential for separate property to become marital property is essential for asset protection. If not managed carefully, individual assets may be subject to division in a divorce settlement. Clear documentation and careful financial management are key strategies to maintain the separate nature of individual property within a marriage.

What Is The Best Way To Divide Debt In New York Divorce Proceedings?

Most people consider how assets will be split when they are preparing to divorce. What happens to the property? Can I get a share of the pension? We hear these questions frequently from clients. Some people may not know that debts accrued during marriages, like assets, must also be divided.

If a debt is linked to an asset, such as a mortgage or loan for a purchase of a car, it will often remain with that asset. The debt will usually be borne by the owner of the asset. Other “unassociated” debts or unsecured (like a credit card) debts must be shared between the spouses and hopefully discharged in the divorce decree.

In most cases, marital debts are those accumulated by either spouse during marriage. They also constitute equal obligations of both parties. However, there is some room for derogation if one of the spouses incurs debts that are not marital. For example, secret purchases made during extramarital activity. These debts will likely be the exclusive obligation of the guilty party.

It is important to speak with an experienced divorce lawyer when dealing with debts in a divorce. Having a skilled divorce attorney can help you understand your rights and responsibilities when it comes to the division of debts and assets. Call the Law Office of Ryan Besinque today to speak with our experienced New York City divorce attorneys.

Topic Marital Property Separate Property
Definition Property acquired during the marriage by one or both spouses Property acquired before the marriage
Ownership Owned jointly by both spouses Owned individually by either spouse
Distribution in Divorce Subject to division as part of the divorce settlement Not subject to division as part of the divorce settlement
Examples Marital home purchased during the marriage House owned by one spouse before the marriage, inheritance received by one spouse before the marriage, property acquired by one spouse before the marriage, personal injury settlement awarded to one spouse, property specified as separate in a prenuptial/postnuptial agreement

How Does the Court Determine Equitable Distribution of Property in a Divorce?

When a couple in New York City gets a divorce, the court will determine how their marital property is equitably split. The judge will determine a variety of factors before making a decision on property division. Those factors include the following:

• Each spouse’s age and overall health

• The duration of the marriage 

• The financial contribution of each spouse to the marriage 

• The amount of time each spouse spent at home to tend to household affairs and care for the children

• The income and assets of either spouse and whether either spouse wasted marital assets.

• Each spouse’s potential earning capacity

• Health insurance or inheritance a spouse might lose due to the divorce

• An award of spousal maintenance to one spouse from the court

• Tax implications of property division

Various other factors might also be examined by the judge when determining the division of property. The court will also take into consideration any agreements between divorcing spouses. If a couple is able to agree on how to split their marital property, the judge can amend it in the divorce settlement. However, if the couple is unable to come to an agreement, the judge will make a decision based on the above factors and ensure that the property is equitably divided. To contact an experienced New York divorce lawyer, please call today at (929) 251-4477.

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