A property acquired before married would still be considered marital property if the two partyes get married later around?

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A property acquired before married would still be considered marital property if the two partyes get married later around?

Asked on June 15, 2009 under Family Law, New York

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Pursuant to New York's Domestic Relations Law, § 236(B)(1)(d)(1), property acquired by one of the parties before the parties' were married is "separate property."  Therefore, such property is presumptively not subject to equitable distribution by the Court in a divorce action.  However, pursuant to Domestic Relations law, § 236(B) (1) (d) (3), the appreciation of otherwise separate property is marital "to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." 

In plain English, this means that if a property acquired prior the marriage increases in value merely because of market forces or fluctuations, the property remains exempt from distribution in divorce.  It remains separate, as provided for under DRL 235(B) (5) (b), which succinctly states, "Separate property shall remain such." 

For there to be a valid claim for the increase in value of premarital property, it must first be shown that increase in value occurred as a result of the positive efforts by the titled spouse. In such circumstances, the non-titled spouse (the one who did not own the particular property prior to the marriage) can then assert that his or her indirect contributions, such as by contributing to the marriage as homemaker, entitle him or her to a share of the appreciation. 

This can be a very complex area of the law.  You should consult with an attorney in your area on this. 

 


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