My Spouse Owned Our Residence Before We Got Married. What Are My Rights?

If you are getting a divorce and your spouse owned your residence before the marriage, you may be wondering, "What are my rights?" As a Nassau County divorce firm with 20 years of experience handling divorce cases, we would be happy to explain what happens in this scenario.

New York is an equitable distribution state. This means that in a New York divorce, property and debts are divided equitably between spouses. This may result in an equal property division, but not always. Under the equitable distribution system, property is divided in a manner that the court deems is fair considering the circumstances of the marriage.

Is all property subject to equitable distribution?

There are two types of property held by spouses: marital property and separate property.

• Marital property is all property acquired by either spouse during the course of the marriage, regardless of what form the title was held. So, the couple's income, retirement benefits, and property acquired during the marriage (such as a house) are all considered marital property.
• Separate property is not divided when a couple divorces. Rather, each spouses keeps their own separate property, except to the extent that the other spouse has contributed to its appreciation.

In a New York divorce, the court only gets involved in property division if the spouses are unable to reach an agreement between themselves and their respective attorneys. In most cases, the court will accept a written separation agreement on how to divide your property. It is only when you and your spouse cannot reach a compromise that the court will have to step in and make these decisions for you.

If you have been living in a home that your spouse purchased before the marriage, that property should remain your spouse's alone. There are circumstances when an appreciation in value in separate property is categorized as marital property, especially when the increase in value was because of a spouse's efforts.

To illustrate, if the property increased in value because you remodeled it for a year, the increase in the house's value is marital property because of your efforts. On the other hand, if that property simply increased in value because the neighborhood was revamped, the increase in value still remains your spouse's separate property.