Since New York is not a “Community Property” state, most of a couple’s assets are considered to be marital property. Although they are divisible, there is hardly ever an even distribution of the assets in divorce cases. A judge will decide how all property should be distributed, based on what they believe to be fair. For instance, the judge will try to keep separate any assets that were acquired by the parties as individuals, both before and during the marriage. However, in the interest of being fair to both parties, the judge may award what ordinarily would be separate property of one spouse, to the other, in the final settlement. 

The divisibility of an asset is not defined merely in terms of physical ownership, as a division of an asset can come in the form of percentages, specifically awarding a share of the property’s total value to the spouse. However, the judge is not the only one who has a say in this process. The judge only has to make the decision if the spouses cannot come to one on their own. 

When spouses try to make a claim for the other party’s separate property is when attorneys and judges are needed in the deliberation process.  Depending on the circumstances presented, separate property can be seen as a marital property, which would, therefore, make it eligible for division in the divorce. 

A common example is a vacation home owned by one of the spouses prior to the marriage. If the other spouse contributes any amount of money, for renovations, home improvements, etc, it would substantially increase their interest in the vacation home, which may still be solely in one spouse’s name. It is circumstances, such as these, that intertwine the originally non-interested spouse and the separate property, ultimately making it marital property, and the percentage, although not 50/50, will reflect a fair amount that serves as reciprocation for the loss of the investment.