I often do consultations where people say things like, “I’m married, but we keep everything separate.” They operate under the assumption that, because each party has assets in their own name, it’s separate property under the law. They think that the default in a marriage tips to individual title, and that the only things that are jointly owned are whatever has been purchased jointly and/or is held in joint names – unfortunately for them, this is a gross misconception. 

Everything purchased during the marriage is presumptively marital property, regardless of title. The burden of proof is on the person who wants to prove otherwise. 

For example, someone might purchase a property in their separate name during marriage. However, title in their sole name doesn’t matter. The overriding presumption is that everything purchased after the date of marriage is marital property. 

Inheritance is, by definition, separate property. That said, if someone uses their inheritance money to purchase a property that they put in their separate name — and then they use money earned during the marriage to pay towards the equity and the principal on the mortgage — then that person has commingled and made a portion of that house marital property. 

Businesses are handled a bit differently. When it comes to businesses, the titled spouse does get a leg up, and the non-titled spouse is typically entitled to smaller percentages than other aspects of equitable distribution, such as accounts, that weigh in favor of 50/50 splits. Non-titled spouses typically get approximately 5% – 33% of the value of the business interest, and where they fall on the spectrum and whether the court would go outside of this most common range is based on the direct and indirect contributions each spouse has made to the business. Let’s say a husband has a contracting business in his exclusive name, as appears on the corporate and business documents, his wife is presumptively entitled to a portion of the business, even though she is a non-titled spouse. 

Prenuptial and postnuptial agreements offer a means to explicitly delineate personal separate property from joint marital property. Their flexibility allows us to go above and beyond what the law provides and create unique solutions that make sense for the situation. 

To learn more and appropriately protect your rights and interests, contact us.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com

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