December 2012

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Understand Your Rights for Property Division in New York Divorce

 

Property in New York Divorce

In New York married individuals have both marital and separate property. In a few states, a spouse may not have separate property. Property in a divorce includes everything from cash, stocks, retirement funds, real estate, business assets, jewelry, housewares and even a professional license may be considered "property" in a New York Divorce.

 

Separate vs. Martial Property in New York Divorce

When a couple divorces, spouses generally divide all marital property equally. It is important to classify property as marital or separate because separate property should not be included in a spouse's share of the marital property.

 

According to New York law, separate property includes the following:

 

  • property acquired before the marriage
  • property acquired by bequest, devise, descent (i.e., an inheritance)
  • gifts to one spouse from anyone other than the other spouse (the gift must be made only to one spouse and not to both spouses)
  • compensation for personal injury cases, but only that part which constitutes punitive damages and pain and suffering.
  • appreciation of separate property will be considered separate property if the non titled spouse did not contribute towards the appreciation.
  • property designated as separate by a validly executed marital agreement (prenuptial or postnuptial agreement)

All property that is not separate property is marital property.

 

Arguments for Separate Property

All property acquired during the marriage is generally considered marital property. The exception may be gifts or a bequest made to only one spouse. Sometimes parties argue over whether a gift was made to only one spouse or if was intended to benefit both spouses. For example, if a mother gives her daughter a ring for her birthday, it is likely a gift only for her and is her separate property, but if her mother gave her daughter a TV for Christmas, the husband may claim the gift was for both of them, or for the family and was not a gift for only one spouse. This type of argument can make dividing property very complicated and time-consuming if spouses cannot agree on what is marital and what is separate property.

 

Property Division Can Be Complex

At first glance it may seem simple to just divide property 50/50 but as spouses consider the nature of property it can actually be very complex. Most spouses do not want more than their fair share of property but fully understanding what is fair and what each spouse's rights are to property is sometimes not obvious at the beginning of the process. The experienced New York family law attorneys at Colwell, Colwell & Petroccione, LLP can help you understand your rights.



Attorney Profile
Mary Theresa Colwell

Mary T. Colwell (nee Pasqualino) graduated from Albany Law School of University in Albany, New York in 2001 with a concentration in Criminal Law. While at Albany Law School, Mary was a member of the Moot Court Board, the Women's Law Caucus and Vice-President of the Italian-American Law Students Association. Ms. Colwell was admitted to the New Jersey State bar in December of 2001 and the New York State bar in January of 2002. She is also admitted in the United States District Court for the District of New Jersey and the United States District Court for the Northern District of New York. In May of 2005, Ms. Colwell was selected for admission to the United States Supreme Court in Washington, D.C.

 

Ms. Colwell worked for the Monmouth County Prosecutor's Office in the Motions and Appeals Bureau, where she acquired prosecutorial experience, upon graduation. She remained in New Jersey for one year, gaining invaluable general practice experience at Hobbie, Corrigan, Bertuccio & Taschy. However, her desire to work in Albany, where she was born and raised, led her the Law Offices of Alice K. Berke, P.C. in 2003, where she concentrated her practice in Matrimonial/Family Law, Real Estate (including real estate closings and landlord-tenant matters), Vehicle and Traffic Law, and Criminal Law.

 

Ms. Colwell joined her husband, Kevin, at Colwell, Ferrentino & Petroccione, LLP in September of 2008 and is currently a member of the New York State Bar Association and the Capital District Women's Bar Association.

 

Mary continues to concentrate her practice in Matrimonial/Family Law, Real Estate (including real estate closings and land-lord tenant disputes), Vehicle and Traffic Law, and Criminal Law. However, she is well versed in many general practice areas.

 

For more information about Mary Colwell click here 



Attorney Profile
Kevin Michael Colwell

In 2005, Kevin Colwell together with his partners founded Colwell, Colwell & Petroccione, LLP in order to provide quality, responsive and full service legal representation in the Capital District and Hudson Valley regions of upstate New York State.

 

After graduating from law school in 1997, Mr. Colwell served brief stints as assistant counsel in the Columbia County Public Defender's Office where he represented criminal defendants at all levels (violation through felony) from arraignment through trial and the Columbia County Department of Social Services where he prosecuted abuse and neglect proceedings on behalf of the County. In 2000 Mr. Colwell began work as an associate to the Albany Law firm Roland, Fogel, Koblenz & Petroccione, LLP where he worked in the areas of civil litigation and probate and estate law. As an associate, Mr. Colwell tried a number of civil cases to verdict and successfully handled many personal injury cases and surrogate proceedings.

 

After the dissolution of Roland, Fogel, Koblenz & Petroccione, LLP in 2005, Mr. Colwell joined forces with Emilio Petroccione to form the beginnings of Colwell, Colwell & Petroccione, LLP.

 

In addition, Mr. Colwell currently serves as special legal advisor to the City of Hudson, having served in that capacity from 2000-2007 and 2010 to the present time.

 

For more information about Kevin Colwell click here