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Separate is separate. If you have a bank account and it remains in your name without marriage, it stays your property. There is no community property or presumption of joint ownership without a valid marriage. No marriage, no division of ‘marital’ property. Plain and simple. New York is not California.

When you say commingled, if you take money from a separate account and put it into a joint account, that automatically becomes mutual money. It has nothing to do with the law of marriage, and it just has to do with owning an account that is titled to either one or both people.

We talked about real property before. So, let’s say that the husband owns this house before the marriage. Now they get married, it doesn’t change anything as far as the separate ownership, but sometimes the wife will be put onto the deed, and if that happens, he is likely going to be entitled to the value of that property up to the date that you went on to the deed. She would be entitled to 50% of the value of that property going forward, and it doesn’t necessarily happen unless her name goes on to the deed. But she’s not been going to be entitled to 50% of the value of the entire piece of real estate, only for the appreciation of what it becomes worth at the time that the divorce occurs, and then you’re asking a judge to make that determination. In addition, she would not be held liable for any lessening of the value.

How Does New York State Law Address The Separation Of Assets When It Comes To Each Of The Matters Below Including Inheritance, Gifts From Third Parties & Awards From Personal Injury?

Inheritance, gifts, and awards from personal injury are exceptions to what’s considered marital property or what’s acquired during the marriage, except the things brought with you into the union were not acquired during the marriage. There are specific rules and many case laws regarding how all proportions of these assets are determined. For example, let’s talk about retirement assets. If you have $100,000 in that 401(k) when you get married, it doesn’t matter what contribution, active or inactive that the non-titled spouse put in or didn’t put into the marriage. That’s going to remain his separate property from before the wedding. Only the ‘titled’ owner of any retirement account can fund it. The spouse can never put any money into the other spouses IRA or 401(k) plan. Now, they get married on January 1st of Year 1, and they get divorced on December 31st of Year 10. His $100,000 401(k)has now grown to $200,000, and, now there’s $200,000 in his 401(k).

He is going to be still entitled to back out as a separate property credit the first $100,000, plus or minus the growth or loss from the market conditions over that ten year period, and the balance, or using this example $100,000 will typically be split evenly between the spouses. So in this example, he ends up with $150,000 (his first original separate $100,000, plus half the second $100,000), and she ends up with $50,000.

Everything acquired from that January 1st year one date to the December 31st Year ten date is going to be considered marital, and in that case, equitable distribution means 50%. On retirement accounts, 50% is almost always the rule as to the distribution of that retirement account. The same thing would go for a defined benefit retirement plan, otherwise known as a pension, typically now issued only to civil service or railroad workers.

An actuary is usually used to determine what percentage of that monthly pension check is going to go to the alternate payee, to the spouse that does not work for the company issuing the pension. So, in a simple example, if a husband works for a municipality, let’s say he’s a policeman, and he’s on the job for ten years when he gets married. Ten years later, the divorce comes, and she is now entitled to her equitable share of that pension. In this case, the numbers are simple. If there are 20 years into the pension and ten years into the marriage, you do a mathematical formula. You take the number of months that the marriage existed; in this case, that would be 120 months, which is ten years. That’s the numerator in a fraction, and you put that over the denominator, which is the number on the bottom, which is the number of months that he was on the job, which is 240 months or 20 years.

You reduce that into a fraction; in this case, it is 1/2, and she would be entitled to half of the half. Then, of course, it’s a question of how much survivorship benefit has to be taken off to ensure that she gets her pension for the rest of her life. That’s often just a negotiated number, but sometimes it’s a situation where you go to trial, and a judge has to determine what is required on the survivorship angle.

For more information on Property Division For Unmarried Couples, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (631) 462-3100 today.

Alan Finkel

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