Albany Family Law Blog

The difference between separate property and marital property in a marriage

Posted by Joanne P. Monagan, Esq. | Jul 08, 2020 | 0 Comments

Each party in a marriage in New York may bring cash and property into the marriage. Those assets are referred to as separate property. Once a couple is married, the property, cash, and assets that they obtain together during the marriage is referred to as marital property. When referenced in legal matters, this property is usually referred to as the marital estate.

If the couple decides prior to or during the marriage that they wish to exclude some separate property from the marital estate, they'll enter into a marital agreement. If this agreement is entered into prior to the marriage, the agreement they'll be entering into is called a prenuptial agreement, commonly referred to as a prenup. If they enter into an agreement after the wedding, they're setting up what's called a postnuptial agreement.

Marital property includes the following:

  • Any cash, retirement accounts, investments, or securities obtained during the marriage.
  • Cars, furniture, artwork or any other property that was brought in by either spouse during the marriage
  • Gifts, real estate, and advanced educational degrees

Separate property includes the following:

  • Any property that either spouse owned or received prior to the wedding
  • Inheritances
  • Property owned by either spouse like investments or other financial instruments that have increased in value during the marriage

If partners don't set up a prenuptial or postnuptial agreement, the assumption is that any property obtained during the marriage will be considered part of the marital estate. The distinction between marital property and non-marital property will have to be made in the event of the dissolution of the marriage when dividing up assets becomes an issue.

The line between separate and marital property can become blurred when dealing with a divorce and marital property division. Experienced divorce attorneys may help ensure that separate property remains secure and that marital property is distributed fairly for all parties involved.

About the Author

Joanne P. Monagan, Esq.

Managing Attorney


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