914.946.0848  .  contact  .  map & directions  .  subscribe  .  LinkedInFacebookTwitterGoogle+

How Separate Property Can Become Marital Property

November 15, 2017  | 
How Separate Property Can Become Marital Property

{3:42 minutes to read} It’s perfectly normal for most married couples to live their lives without knowledge of the intricacies of separate and marital property in New York matrimonial law. Unfortunately, though, that lack of knowledge can lead to common and innocent “mistakes” and have unintended consequences under the law.

Our Typical Couples

A couple maintains only joint accounts and holds all property with the other named on all assets. This has been what they have done since they were first married and have never given it a second thought. So, when one received a large gift from a parent, they just deposited it into a joint account and made withdrawals from the account, as usual. 

They each may have had an account in their individual names before they got married, and have kept those accounts, depositing some of their paychecks into them and using the accounts to pay their expenses.

One of them owned a home before the marriage. They decided after the marriage that it made sense to put it into both names so that if one died, the other could inherit the home.

Commingling

The law defines commingling as when you have something that is clearly separate property, such as an account that you had before you were married, into which you then deposited marital money (such as your salary). 

Transmutation 

Transmutation of a separate asset into a marital asset under the law occurs when you add your spouse’s name to an asset that would be considered separate property. The transmutation for our typical couple could be claimed when the real property was transferred to joint names. Similarly, the gift from the parent, while separate property when given, could lead to a claim that it became marital property when deposited into the joint account.

If commingling or transmutation occurs, it doesn’t necessarily mean that you have lost everything. You may be entitled to some kind of credit or, under certain circumstances, may even be able to retain the separate property nature of the asset.

That determination, however, can certainly involve a significant amount of attorney's fees to resolve the issue if you are in a contested situation with your spouse. On the other hand, if you are in a mediation, you will not only understand what the law provides and the questions that would be inherent in determining if a commingling or transmutation occurred but more importantly: 

•How the other person feels about it;

•Why the other person commingled or transmuted the asset; and/or

•What the other person intends to do with the property/asset if it can be retained as their separate property.

And you might just come to a conclusion on your own that you both can feel good about. That resolution will take into consideration all of the facets of the law—as well as the feelings, reasoning, and intentions of both of you—and eliminate the hurt, time and cost of an adversarial process.

Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

Email »

Comments
Search
Topics
Mediation (117) | Divorce (108) | Separation (25) | Divorce Mediation (19) | Mediator (13) | Litigation (11) | Communication (10) | Conflict (10) | Child Support (10) | Separation Agreement (9) | Consultation (7) | Co-Parenting (7) | Attorney (7) | Prenup (7) | Clare A. Piro (6) | Clare A. Piro Mediation (6) | Parenting (6) | Collaborative Divorce (6) | Assets (5) | Parenting Plan (5) | Children (5) | Marital Home (5) | Expenses (4) | Agreement (4) | Settlement (4) | Marital Assets (4) | Separate Property (4) | Family (4) | CSSA (4) | Equitable Distribution (4) | Finances (4) | Clients (3) | Joint Decisions (3) | Divorce Coach (3) | Prenuptial Agreement (3) | Listening (3) | Emotions (3) | Divorce Mediator (3) | Financial Professional (3) | Relationships (3) | Family Court (3) | Child Consultant (3) | Child Inclusive Mediation (3) | Marital Property (3) | Responsibility (3) | Estate Documents (3) | Divorce And Children (3) | Mediation Myths (3) | Informed Decisions (3) | Divorce Finances (3) | Child Support Standards Act (3) | Clare Piro (3) | Divorce Agreement (3) | Surviving Spouse (2) | Grace (2) | College Expenses (2) | Inheritance (2) | Apology (2) | Moving Forward (2) | Consulting Attorney (2) | Certified Divorce Financial Analyst (CDFA) (2) | Step-Mother (2) | Step-Father (2) | Humanity (2) | Anger (2) | Bitterness (2) | Post-Divorce Income (2) | Law Professionals (2) | CDFA (2) | Mediate (2) | Separation Agreements (2) | Anxiety (2) | Calculating Support (2) | Blended Families (2) | Step-Children (2) | Joint Decision Making (2) | Spouse (2) | Child Support Standards Act (CSSA) (2) | Pandemic (2) | New York Child Support Statute (2) | Unrequited Love (2) | Collaborative Practice (2) | Attitude (2) | Truth (2) | Couples (2) | Custody (2) | Legislation (2) | Conflict During Mediation (2) | Settlement Agreements (2) | Seperation (2) | Budget (2) | Agreements (2) | Mediation Benefits (2) | Mediation Versus Litigation (2) | Estate (2) | Right Of Election (2) | Budgets (2) | Will (2) | Equal Parenting Plan (2) | Compromise (2) | Mediating Emails (1) | Feelings (1) | Intention (1) | New Year’s Resolutions (1) | Mediating Onine (1) | Religious Holidays (1) | COVID 19 (1) | Cultural Holidays (1) | Lack Of Focus (1) | Child Focused Mediation (1) | Communicating (1) | Family Mediations (1) | Remain Healthy (1) | Parental Holiday Sharing (1) | Thrive (1) | Tone Of Voice (1) | Facial Expression (1) | Joseph Goldstein (1) | New York’s Child Support And Maintenance (1) | Postnuptial Agreements (1) | Waiving Spousal Support (1) | Lack Of Communication (1) | Depression (1) | Holiday Season (1) | Languish (1) | Transition Day (1) | Caucus (1) | Mediating Virtually (1) | Child Support Payment (1) | Domestic Violence (1) | Primary Caretaker (1) | Custody Determination (1) | Child's Best Interests (1) | Separating (1) | NYs Child Support Guidelines (CSSA) (1) | Co-parenting (1) | Power Of Regret (1) | Non-Residential Parent (1) | A Neutral (1) | Children And Divorce (1) | An Advocate (1) | On-Duty Parent Responsibilities (1) | Retirement (1) | Guilt (1) | Parenting Schedules (1) | Technical Difficulties (1) | Anxious Thoughts (1) | Agreement To Mediate (1) | 50/50 Parenting Plan (1) | Unhappy Relationship (1) | Expectations (1) | Pathological Liar (1) | Heard (1) | Understood (1) | Older Parents (1) | 50/50 Parenting (1) | Tough Decisions (1) | Older Adults (1) | Eldercare (1) | Couples Counseling (1) | Elder Mediation (1) | Pension Plans (1) | Support Add-ons (1) | Pensions (1) | Being Heard (1) | Breast Cancer (1) | Ovarian Cancer (1) | Support Connection (1) | Cancer (1) | Successful Mediations (1) | Commitment (1) | Being Understood (1) | Divorce Needs (1) | Support (1) | Collaboration (1) | Decision Makers (1) | Cohabitation Agreement (1) | Cohabitating (1) | Unmarried (1) | Emotional Trauma (1) | File A Petition (1) | Parent Coordinator (PC) (1) | Hope (1) | Default Provisions (1) | Parent Coordinator (1) | Self Compassion (1) | Partial Buyout (1) | Buyout (1) | Inflation (1) | Children Of Divorce (1) | Interest Rates (1) | Real Estate (1) | Selling The Marital Home (1) | Self Reflection (1) | Postnup (1) | Meditation (1) | Fairness (1) | Separate Asset (1) | Marital Asset (1) | Consulting (1) | Parenting Agreement (1) | Divorce Terms (1) | Divorce Agreement Terms (1) | Final Decisions (1) | Contentment (1) | Retirement Plans (1) | Opposites (1) | ADR (1) | Presumptive ADR Program (1) | New York Family Court (1) | Family Court Presumptive ADR Program (1) | Parenting Styles (1) | Coparenting (1) | Perspective (1) | Personality (1) | Pension (1) | Separate Property Credit (1) | Advocacy (1) | Empowerment (1) | DecisionMaking (1) | CoParenting (1) | Family Occasions (1) | Honest Conversation (1) | Legal Rights (1) | Alternative Dispute Resolution (1) | Qualified Domestic Relations Order (QDRO) (1) | Happiness (1) | Beliefs (1) | AcceptableOutcome (1) | Mediation Process (1) | Matrimonial Practice (1) | Kindness (1) | Righteous Anger (1) | Disagreements (1) | Ideas (1) | Saving Grace By Kirsten Powers (1) | Actuarial Company (1) | Kirsten Powers (1) | Court (1) | Judge (1) | Pro-Rata (1) | Global Pandemic (1) | Bonuses (1) | Commissions (1) | Income Level (1) | Maggie O’Connor (1) | Fear Of Separation (1) | COVID19 (1) | Fall (1) | Parents (1) | Disclosure (1) | Moving On (1) | Unemployment (1) | Seperation Agreement (1) | Payments (1) | Extremes (1) | Conflicy (1) | College (1) | Acknowledgement (1) | Power (1) | School Year (1) | Kids (1) | Summer (1) | Marriage (1) | Resolution (1) | Scarcity (1) | Contribution (1) | Nesting (1) | Divorce Law (1) | Joint Legal Custody (1) | Financial Costs (1) | Lack Of Trust (1) | Accusations Of Delay (1) | Tentative Agreements (1) | Permanent Agreement (1) | Temporary Agreement (1) | Installment Agreements (1) | Negative Communication (1) | Compassion (1) | Divorce Papers (1) | Retirement Account (1) | Maritial Assets (1) | Maritial Property (1) | Transmutation (1) | Commingling (1) | Married Couples (1) | Hurricane Harvey (1) | Abundance (1) | Grandparents (1) | Settle Agreement (1) | Alone At The Holidays (1) | Relocation (1) | Specialist (1) | Mental Health (1) | Equity (1) | House (1) | Finding Love After Divorce (1) | Post-Divorce Dating (1) | Holidays Post-Divorce (1) | Difficult Clients (1) | Holiday Blues (1) | Scared Of Divorce (1) | Fear Of Divorce (1) | Halloween (1) | Moving On After Divorce (1) | Joint Physical Custody (1) | Parenting Post-Divorce (1) | Parenting Plans (1) | Change (1) | Self-determination (1) | Baby Boomers (1) | Self-talk (1) | Living Apart (1) | Living Together (1) | Effects On Family (1) | Older Dogs (1) | Adopt Shelter Dogs (1) | Dogs (1) | New York (1) | Advice (1) | Self Determination (1) | Blame (1) | 2015 (1) | Year In Review (1) | Mindfulness (1) | Equality (1) | Balance (1) | Control (1) | New York State (1) | Joint Account (1) | Settlement Term (1) | Court Order (1) | Mental Health Professional (1) | Needs Vs Wants (1) | Negotiation (1) | Entitlement (1) | Court Process (1) | Financial Documents (1) | Financial Information (1) | Family Law Software (1) | Lawyer (1) | Marital Concerns (1) | PostNup (1) | Post Nuptial (1) | Time To Process (1) | Patience (1) | Marriage Counseling (1) | Frame Of Mind (1) | Reluctant Spouse (1) | Telling Your Spouse (1) | Court Vs Mediation (1) | Asset Distribution (1) | Buyer (1) | Maintaining Calm (1) | Matrimonial Cases (1) | Custody Disputes (1) | Multiple Assets (1) | FinancialPortfolio (1) | Complicated Finances (1) | Mediation Misconceptions (1) | Social Distancing (1) | Coronavirus (1) | Attitudes Toward Prenups (1) | Meditate (1) | Property Distribution (1) | Equitable Distribution Statute (1) | Apologizing (1) | But (1) | Fiancé (1) | Prenuptial Agreement (Prenup) (1) | Collaborative Process (1) | Seller (1) | Cash Flow (1) | Life Insurance (1) | Bankruptcy (1) | Little White Lies (1) | Lies (1) | Public Trust (1) | Personal Relationships (1) | Settlement Agreement (1) | Married (1) | Affair (1) | Wife (1) | Spouses (1) | Husband (1) | Financial Situation (1) | Custodial Parent (1) | Intervention (1) | Dreaming (1) | Therapy (1) | Beneficiary (1) | Spousal Support (1) | Dishonest (1) | Work Stress (1) | Interest Payments (1) | Remarriage After Divorce (1) | Equity Loan (1) | Refinance (1) | Divorce Assets (1) | Emotional Attachment (1) | Dividing House Asset (1) | Ex-Spouse (1) | Accepting Responsibility (1) | Taking Responsibility (1) | Family Enrichment (1) | Holiday Preparations (1) | Attitudes (1) | Significant Other (1) | AttorneyPresence (1) | FamilyMediation (1) | MediationSession (1) | LawyerDivorceMediation (1) | Matrimonial Dispute (1) | Perfection (1) | Buyout Options (1) |
Connect
Close Announcement

Online Mediation Available

In response to COVID-19 I am providing family and divorce mediation services online. Click to learn more.