Divorce: New York

Divorce: New York

Tag Archives: Separate Property

Failure in Prenup to Specify Earnings as Separate Property Warrants Recoupment

Posted in Agreements and Stipulations, Equitable Distribution
The failure of a prenuptial agreement to specify that earnings during the marriage were separate propertywarranted a breach-of-contract recovery as part of a distribution on divorce when those earnings used to pay sparate liabilities. So held Supreme Court New York County Justice Laura E. Drager in her January 15, 2014 decision in R.B. v. M.I … Continue Reading

Deducting Separate Property Business Losses on Joint Tax Return May Transform Property to Marital

Posted in Equitable Distribution
Sometimes developing divorce case law seems like a bad game of telephone. Take the February 7, 2014 decision of the Fourth Department in Foti v. Foti. Here, the Court reversed the order of Supreme Court, Monroe County Justice Kenneth R. Fisher which had granted a wife partial summary judgment determining that various real estate entities and … Continue Reading

Credits on Divorce for Using Marital Funds for Separate Property Assets

Posted in Equitable Distribution
The August 21, 2013 decision of the Appellate Division, Second Department in Patete v. Rodriguez may have expanded the credits available to the non-titled spouse when marital funds are expended on a separate-property asset. When New York adopted its Equitable Distribution Law in 1980, courts were now longer bound by which spouse held title to … Continue Reading

Considering Veteran’s and Social Security Disability Payments in Divorce

Posted in Equitable Distribution, Maintenance
In a January 15, 2013 decision in Alvarado v. Alvarado, Richmond County Supreme Court Justice Catherine M. DiDomenico, held that the husband’s veteran’s and Social Security disability benefits are separate property for purposes of equitable distribution. Moreover, the veteran’s disability benefits could not be considered on a maintenance award. The Social Security benefits could. As discussed in … Continue Reading

Husband Gets No Separate Property Credit in Divorce for Pre-marital Home Deeded to Himself and His Wife Jointly

Posted in Equitable Distribution
In its December 13, 2012 decision in Murrary v. Murray, the Appellate Division, Third Department, affirmed the determination to deny a husband an equitable distribution credit for the value of a home which he owned before the marriage and which, after the marriage, he deeded to himself and his wife jointly. The parties were married in 1986 … Continue Reading

Payment of Husband’s Pre-marital Support Arrears Results in Equitable Distribution Credit to the Wife

Posted in Equitable Distribution
Distinguishing the 2009 Court of Appeals decision in Mahoney–Buntzman v. Buntzman, the Second Department, in its October 24, 2012 decision in Levenstein v. Levenstein, has held that if marital funds are used to pay pre-marital support arrears, the non-obligated spouse may be awarded a credit towards equitable distribution. In 1995, before the current marriage, Mr. … Continue Reading

Contribution of Separate Property to Purchase of Jointly-Owned Marital Residence Was Not a Gift

Posted in Divorce, Equitable Distribution
A spouse contributing separate property (most commonly pre-marital, gifted, or inherited funds) to the purchase of the marital residence does not make a gift of (half of) that payment to the other spouse, even if the residence is held by the parties jointly. So was the holding of the Appellate Division, Fourth Department, in its September … Continue Reading

Separate Property Rules Turned Upside Down

Posted in Equitable Distribution
It should have been a dead giveaway.  Court of Appeals Judge Victoria Graffeo warned us that in Fields v Fields (PDF), New York’s highest court was about to apply public policy principles to “unique facts.”  The result: a decision likely to keep Equitable Distribution litigators busy for years to come. 8 years into the Fields’ 35-year … Continue Reading