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Protecting Separate Property in a New York Divorce

Protecting Separate Property in a New York Divorce

Divorces of affluent couples often delve into very complicated financial arrangements, including Mansion property ownership. High net worth individuals facing a divorce action should find a Suffolk County divorce attorney experienced in identifying separate property assets.

The Law Office of Robert Montefusco, P.C. has experience in high net worth divorces on Long Island and the representation these clients require. Our legal team will aggressively pursue your interests, ensuring that you retain property that is rightfully yours.

A bad divorce can substantially affect divorcing spouses’ standard of living, especially when the other party gains more than he or she is entitled to receiving. Working with a forceful advocate with a firm grounding in the byzantine laws and procedures governing high net worth divorces can ensure clients are not financially ruined in a divorce.

NEW YORK’S EQUITABLE DISTRIBUTION DIVORCE LAW

Divorce law in New York, and most other states, is based on the concept equitable distribution of assets. In equitable distributionstates, the court

takes a more nuanced view of property earned or otherwise acquired in a marriage. The court divides property based on a variety of factors, including the relative earning contribution of each spouse, contributions made by spouses who are stay-at-home parents, earning potential and other factors.

SEPARATE PROPERTY

Divorcing spouses in New York may have a stronger claim to separate property, property earned before a marriage or gifts, personal injury awards, or inheritances bestowed on them individually during the marriage, than marital property. Property acquired with separate property, such as a house acquired with the proceeds of an inheritance, can also be treated as separate property by divorce courts.

Sometimes, in divorces, the way separate property is treated during a marriage may cause it to become marital property. For example, if a husband owns a house before a marriage and, during the marriage, he changes the title of the home to become a joint title in his and his wife’s name, this will cause the home to become marital property in the eyes of the law.

Another example would be depositing the proceeds of an inheritance into a joint bank account used by both parties. However, if a spouse can trace funds in the joint account to its separate source, a court may classify those funds as separate.

Also, in New York, if a spouse contributes to an increase in the value of his or her spouse’s separate property, the increase in value can be considered marital property rather than separate property.

For example, if a spouse’s work as a homemaker provided the other spouse with time to renovate his or her separate property, this may result in the increase in value being classified as marital property, and the spouse who owned the house may have to compensate the homemaker for the increase in value the renovations yielded.

Another example of this concept would be a spouse using a joint bank account or marital money to make mortgage payments on a piece of separate property. The paydown in the mortgage principal may entitle the non-titled souse to a credit.

PROTECTING SEPARATE PROPERTY

Attorneys Robert Montefusco and Meaghan Howard

The best way to protect separate property is by signing a prenuptial agreement designating certain property as separate property. Spouses entering into prenuptial agreements should ensure that they are upfront and honest with their spouses concerning the property covered in the agreement and also refrain from using duress to get the other party to sign the agreement, as these circumstances may result in a successful challenge to the agreement later.

Prenuptial agreements aren’t available to spouses who are already married, however, but another way spouses can protect their property is by entering into post-nuptial agreements.

The Law Office of Robert H. Montefusco, P.C. has substantial experience in high net worth divorces, helping spouses protect their rights to real estate, inheritances, and other assets. When emotions and stakes are high, Montefusco and his team can provide objective, sound advice that will help clients make the right choices and obtain favorable results. For a consultation, visit or contact The Law Office of Robert H. Montefusco, P.C. today.

Sources

  1. http://www.wealthx.com/articles/2017/the-wealth-x-world-ultra-wealth-report-2017/
  2. https://nypost.com/2016/03/12/new-york-city-is-the-capital-of-millionaires/
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