Attorney Robert E. Hornberger, Esq., of Hornberger Verbitsky, P.C., appears on Eye on Real Estate, a podcast and radio show with Dottie Hermann, CEO of Douglas Elliman, the fourth leading real estate firm in America. He discusses topics related to splitting the marital residence in New York and distributing separate and marital property in a divorce. Eye on Real Estate is dedicated to exploring mortgage news and market trends and answering tough real estate questions asked by listeners.

Here are some of the podcast’s highlights:

Purchasing a Home with Separate Property

When a married or engaged couple purchase a home, if they do so with separate property, that property should remain separate in the event of a divorce. For example, if one spouse’s parents wrote a check for a large down payment on a home, this would be considered separate property and not marital, or shared, property that would be distributed in the event of a divorce. Attorney Hornberger says,

“One of the biggest issues we run into with equitable distribution, especially when it relates to a marital residence, is if one spouse had more money coming into the marriage. Say their family gave them a gift. In New York, any money you put towards the purchase of a home from funds you had before the marriage, or if you received it as a gift or inheritance during the marriage, is your separate property. It’s your obligation in the event of a divorce to document and prove that you had that separate property.”

How to Keep Records of Separate Property

Maintaining adequate records of separate property going into and during the marriage is critical to ensuring that the property remains with its rightful owner after a divorce. Attorney Hornberger gives tips on how parents who gift money to their married children should do so and how to keep records of separate property.

“Write the check to your child and keep a copy of it. Keep a copy of the bank account statement, scan it, and save it in the cloud. That way you have it down the road. Because I promise you in the event of a divorce, your spouse oftentimes loses their sense of morality and is going to forget that their spouse’s parents, their former in-laws, wrote that check.”

What Constitutes Marital Property?

When a home is purchased by a married couple, is it automatically considered joint property? Or are there exceptions? Attorney Hornberger explains:

“Any property acquired during the marriage in New York is marital property, unless it’s the result of a gift, an inheritance, or compensation for personal injury. So it doesn’t matter if during the marriage you buy the property only in your name. It’s still marital property unless it’s from those three things.”

The Meaning of Equitable Distribution

During a divorce, marital property must be divided between the spouses. New York, along with many other states, uses what is known as equitable distribution to determine which spouse gets what assets, which is different from equal distribution. However, in some cases, courts may lean more toward equal distribution. Attorney Hornberger elaborates:

“In New York, any property acquired during the marriage is equitably distributed in a divorce. Equitable means fair, but not necessarily equal. However, the longer you’re married, the more the presumption is that assets should be divided equally. The issue of marital fault, as it applies to equitable distribution is that in most cases, a court will not consider fault when determining how to distribute assets. The only time a court will consider fault is if the court deems the fault to be egregious.”

Listen to the podcast here: EORE Hour Two 10-26-19 with Divorce Attorney Robert E. Hornberger, Esq. Real Estate Attorney Andrew Lieb and Ace Watanasuparp of Citizen’s Bank

Involved in a New York Divorce? Get Legal Help Today

Attorney Robert E. Hornberger, Esq. is an experienced Long Island family law and divorce lawyer. If you’re considering divorce, or getting married and in need of a prenuptial agreement, reach out for a free initial consultation. Contact us at 631-923-1910.

For more information about Property Division in your divorce, visit our Complete Guide to Dividing Property in Divorce.