How does New York handle separate property in a divorce?

What the Law Says

New York follows equitable distribution — not community property — meaning only marital property is divided fairly (not necessarily equally), while separate property belongs solely to the spouse who acquired it.

Separate property includes assets owned before marriage; inheritances or gifts received by one spouse during marriage (even if received during the marriage); compensation for personal injuries (excluding lost earnings); and property designated as separate by a valid prenuptial or postnuptial agreement.

However, separate property can lose its protected status if it’s commingled with marital assets — for example, depositing pre-marital cash into a joint bank account used for household expenses — or if the other spouse contributes significantly to its preservation or appreciation.

The burden of proof lies with the spouse claiming an asset is separate: they must trace and document its origin and maintain its separate character.

Statutory Text

‘Separate property’ means: (1) property acquired before marriage; (2) property acquired by bequest, devise, or descent; (3) compensation for personal injuries; (4) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; and (5) property designated as separate property by written agreement of the parties.

— Domestic Relations Law § 236(B)(1)(d) — Definition of separate property

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