One of the first steps in getting a divorce is figuring out your assets and liabilities, with the goal of achieving an equitable division of property.
But equitable does not always mean equal, and one important aspect of this process is identifying and valuing assets that would be considered marital property (earned/achieved during the marriage) or separate property, which was earned/achieved before the marriage, or inherited before or during the marriage.
In the event that you have a separate property claim, it is critical to work with your attorney to trace and identify that separate property. If you have commingled your separate property with marital property, and therefore cannot trace your separate property claim, you may lose your separate property claim but can still ask for an unequal and equitable distribution of the assets based upon your separate property contributions.
That said, pre-marital businesses are also vulnerable to claims for equitable distribution. A valid prenuptial or postnuptial agreement can help eliminate or limit the threat to a pre-marital business venture in a future divorce.
Examples of separate property which are protected from equitable distribution in New York State may include:
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