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Why is Commingled Property So Important in a Divorce?

by | May 4, 2021 | Property Division, NY

Property division can be one of the most challenging aspects of a Long Island divorce, especially if you and your spouse do not have children. Often, the biggest issues of contention in a divorce are how to separate and divide your assets in a fair and equitable way.

There are two main types of assets to be divided in a divorce: Marital Property and Separate Property.

Marital property is everything owned by one or more spouses during the marriage. Money and other assets acquired during the marriage are presumed to be marital property.

Separate property consists of the assets that were acquired by each spouse prior to the marriage, as well as any gifts and inheritances you individually acquired, even if acquired during the marriage.

Another, less less-often heard term is called commingling and it’s when separate property becomes commingled and can be considered marital property. Read on to learn more and how you can get help navigating the dissolution of your marriage from an experienced divorce lawyer.

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Commingling Divorce Property 101

The simplest definition of commingling is the combining of separate property into marital property. For example, if you have a substantial inheritance that you came into the marriage with, but you decided to use some of that money to make improvements on the marital home, you’ve commingled your separate assets — the inheritance — with marital assets — your shared home. Or, if you deposit money from that inheritance into your joint checking or savings account, the money then becomes shared property. Typically, once you commingle assets, it becomes difficult to separate them.

Tracing Assets in Divorce

Tracing is a process by which a divorce court can establish that marital assets originated from separate property. This is done so the asset can be declared legally separate and be treated as non-marital property. For example, say you purchased a vehicle with money from a savings account given to you by your parents, but you and your spouse both used the vehicle. Your spouse may attempt to claim the property as marital, saying that you both equally relied on and operated it. However, through the process of tracing, a divorce court can determine that the funds used to pay for the vehicle originated from non-marital assets. In this case, the declared owner will be the spouse whose separate assets paid for jointly used property.

Keeping Your Property Separate in Divorce

You can and should be able to maintain ownership of separate property so long as you can show that it is indeed separate, either with documents showing you purchased the property before the marriage or by tracing the funds used to purchase it to non-marital liquid assets. If you are unable to show that you are the sole or rightful owner of an asset, typically it will be subject to equitable distribution. Equitable distribution is not equal distribution in New York, however, so it’s important to understand the difference and how this concept may play out in your Long Island divorce.

What to Ask an Experienced Long Island Divorce Lawyer

Here are some important questions you’ll want to ask your family law attorney before making any decisions related to your divorce, including separating property:

  • What types of property can be commingled? When and how can this process be reversed?
  • Are certain types of property not eligible to be unmixed?
  • Can debts be separated? Will I legally owe some of my spouse’s debts?
  • How are commingled business interests unmixed? Will one spouse have to buy the other out?
  • How do I track and prove gifts given to me during the marriage are separate property?
  • If I don’t have a prenuptial agreement, will I get any of my separate property back after a divorce?
  • Should I consider obtaining a postnuptial agreement prior to getting a divorce?

Come prepared with a pen and paper to jot down important information your attorney gives you during your appointment. Even if you don’t pull the trigger on getting a divorce right away, you will still be able to get advice on how to start separating your property now.

Contact Hornberger Verbitsky, P.C. Today to Book Your Divorce Consultation

If you’re involved in a divorce on Long Island, you need experienced legal advocacy on your side. This is especially true in cases where your divorce is contentious, or you stand to gain or lose a lot depending on what final judgments are issued in your case. Unmixing commingled assets during the dissolution of a marriage is a complex process and can be even more so if you and your spouse were married for an extended length of time, own a business together, or are otherwise very heavily financially intertwined.

Call experienced Long Island divorce lawyers Hornberger Verbitsky, P.C. today to schedule a consultation to discuss your divorce options and what to do if you’re considering ending your marriage but have many shared assets. Contact us now at 631-923-1910 or fill out the short form below to schedule your initial consultation.


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