If the appreciation of separate property becomes marital property, what percent of the increase will I keep?

Asked 12 months ago - New York, NY

I'm getting married and am wondering what New York laws are, and if I maybe need a prenup.

Attorney answers (5)

  1. Gary Burton Port

    Contributor Level 14

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    Answered . Boy, this has been a hot topic today. This is a sticky situation and that is why a pre-nup is a good idea. Generally, and please be aware that the exceptions can swallow a whale, passive appreciation is not marital. But, if the appreciation is due to marital inpute, such a marital money to fund a capital improvement, then the appreciation could be marital. This varies from circumstance to circumstance. You also have to be aware that separate property can be transmuted to marital property under the right (or wrong) circumstances. You need to consult with an attorney on your specific situation.

  2. Mary Katherine Brown

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    Answered . I recommend you protect yourself via a Prenup so the "percentage" will be whatever you agree to now, anywhere between 0%-100%. If you leave it up to the court's discretion upon a breakdown of the marriage, you can be sure you won't like the result. It is easy and relatively inexpensive to deal with this now--not so much if you are in the throes of divorce. Good luck!

    Ms. Brown may be reached at 718-878-6886 during regular business hours, or anytime by email at: marykatherinebrown@... more
  3. Peter Christopher Lomtevas

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    Answered . No answer. The law in NY is "equitable distribution" which is not a mathematical cut. Over many years, wealthy husbands cheated their wives by hiding their assets from judicial view. So the wife's assets would be cut in half leaving her a fraction of the marital estate.

    So the law was rewritten to dispose of a marital estate "equitably" or "fairly" which is not based on percentages of presented documents. So there is no answer to your question without looking at the totality of your marital estate.

    Good luck.

  4. Jayson Lutzky

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    Answered . If you have separate property, then It is wise to seek counsel about a prenup. Schedule a consultation with an attorney to discuss your options.

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  5. Marco Caviglia

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    Answered . I agree that appreciation of a separate assets remains so unless there is an active element by the non-titled spouse in causing the appreciation other than "sweat equity." But the way to put your mind at ease is a prenuptial agreement, but it has to be approached delicately, early, and openly with your future spouse so it is not being seen as a muscle move.

    If you found this "helpful" or "best answer," please click it with my appreciation. My response is for... more

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Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Dividing Separate Property in Divorce

Separate property generally refers to property that is acquired before marriage. However, gifts and inheritances are also separate property.

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