At Gilmer Law Firm, PLLC, we often hear one anxious question from clients starting the divorce process: “Can my spouse take the property I inherited or owned before we got married?” This is one of the most common and important issues in any divorce case in Brooklyn or anywhere in New York.
New York law draws a sharp line between marital property (which can be divided in a divorce) and separate property (which usually remains with the spouse who owns it). But as many people discover, the distinction is not always simple.
This blog will explain:
- What counts as separate property versus marital property.
- Real-world examples showing how courts treat inheritances, premarital assets, and hidden or commingled assets.
- Why careful documentation and strong legal representation are critical in these disputes.
Whether you are preparing to protect what’s rightfully yours or fighting to ensure fairness in a property division, understanding the law is the first step.
The Legal Framework: Marital vs. Separate Property
New York’s Domestic Relations Law § 236(B) controls how property is divided in divorce. It distinguishes between:
- Marital Property: All property acquired by either or both spouses during the marriage, regardless of how title is held.
- Separate Property: Includes property acquired before marriage, inheritances, personal injury awards, and gifts from someone other than a spouse.
The statute makes it clear that “separate property shall remain separate property.” But in practice, spouses often disagree on whether an asset truly stayed separate or became marital through commingling.
For more background, you can review this helpful NYC Bar guide on property rights: NYC Bar – Property Rights in Divorce.
Inherited Property – When Does It Stay Yours?
One of the most frequently asked questions is about inheritances.
Let’s say you inherited a house from your grandmother before your marriage. On paper, that’s separate property. But if you later add your spouse’s name to the deed, or use marital funds to renovate it, a court could treat at least part of the property as marital.
Example:
- Scenario 1: You inherit $100,000 and keep it in a bank account in your name only. You never mix it with marital funds. The money remains separate property.
- Scenario 2: You inherit $100,000 and use it as a down payment on a marital home purchased during the marriage. Unless carefully traced, that inheritance may be considered part of the marital property, subject to property division.
Courts often focus on whether the spouse who inherited the asset intended to keep it separate or commingled it with the marital partnership.
For a general overview of how inheritances and other separate property are handled, check out this external guide: Modern Family Law – What Happens to Property Owned Before Marriage?. Keep in mind, this guide discusses general concepts and may include out-of-state law, so always confirm with a Brooklyn divorce attorney about how New York courts apply the rules
Premarital Assets – Bought Before Marriage
Assets bought before the marriage are also separate property. But like inheritances, problems arise when those assets are later mixed with marital property.
Example:
- You bought a condo in Brooklyn in 2010, five years before marriage. After the marriage, you and your spouse live there together. You pay the mortgage from a joint account and make renovations with marital funds.
- While the condo started as separate property, the increase in its value during the marriage may be considered marital property, especially if your spouse contributed financially or directly to its improvement.
This distinction is crucial for high-value assets in Brooklyn and throughout New York City. Without strong legal representation, you could lose a portion of an asset that should remain yours.
For more insights, see Gilmer Law Firm – Divorce Practice Area.
Commingling – How Separate Becomes Marital
The legal term “commingling” describes what happens when separate property is mixed with marital property to the point where it can no longer be easily distinguished.
Example:
- You had a savings account before marriage with $50,000. After marriage, you continue to deposit your paycheck (a marital asset) into the same account. Years later, the account balance is $150,000. Because the separate and marital funds were blended together, the entire account may now be considered marital property.
In Brooklyn divorces, this is one of the most hotly contested issues. A Brooklyn family law attorney can help trace separate contributions, such as by using forensic accountants, to preserve your claim.
Hidden Assets – When Transparency Fails
Another major issue is hidden assets. Sometimes, a spouse will attempt to conceal bank accounts, business interests, or other assets to reduce what appears in the marital estate.
Example:
- One spouse owns a small business and funnels money into a secret account. During divorce, the other spouse suspects underreporting of income.
- Courts can impose penalties and order full disclosure. If hidden assets are discovered, the spouse attempting to conceal them may face sanctions and lose credibility in property division proceedings.
This is why hiring a Brooklyn divorce attorney with experience in uncovering hidden assets can be critical. At Gilmer Law Firm, PLLC, we regularly handle cases where full disclosure is necessary to ensure fairness.
Real-World Example – A Brooklyn Brownstone
Imagine this scenario:
- Maria inherited a Brooklyn brownstone from her uncle in 2005. She married in 2010 and moved in with her husband, John. Together, they used marital funds to renovate the kitchen and roof, significantly increasing the home’s value.
- In their divorce, Maria argues the brownstone is her separate property because she inherited it before marriage. John counters that the increase in value is marital property since renovations were funded with joint accounts.
Under New York law, John may be entitled to an equitable share of the increased value, but not the full ownership of the brownstone itself. This is how courts balance fairness without entirely stripping the spouse who inherited property.
Hidden Asset Example – Business Interests
Consider another example:
- David bought a small restaurant before marriage. After marrying Lisa, he expanded the business using joint funds and Lisa’s unpaid labor in the restaurant.
- When divorcing, Lisa argues that the restaurant’s increased value during the marriage is marital property. David claims it’s all separate property because he owned it before marriage.
Courts often side with the spouse who contributed to the appreciation. The restaurant remains David’s separate property, but Lisa may receive compensation for the increase in value tied to her contributions.
Protecting Your Separate Property
If you are entering a marriage with significant assets, you can take steps to protect them:
- Prenuptial Agreement: A written contract that defines what will remain separate in the event of divorce.
- Postnuptial Agreement: A similar agreement made after marriage.
- Keep Inheritances Separate: Store them in accounts solely in your name and avoid mixing with marital funds.
- Document Contributions: Keep records showing how property was acquired and maintained.
For more on how divorce can affect children and family dynamics, read: The Psychological Impact of Divorce on Children.
Why These Issues Matter in Brooklyn
Property disputes in divorce are particularly significant in Brooklyn, where real estate values, business interests, and family inheritances can be very high. For many families, the outcome of property division determines long-term financial security.
Whether it’s protecting a family brownstone, safeguarding an inheritance, or uncovering hidden accounts, you need an advocate who understands both the law and the local courts.
For more detail on divorce in Brooklyn, see: Gilmer Law Firm – Family Law Practice.
Final Thoughts – Protect What’s Rightfully Yours
The bottom line is this: Separate property is protected under New York law, but only if it’s carefully preserved. Inheritances and premarital assets can be lost—or at least partly divided—if they are commingled, used for marital purposes, or appreciated with the help of a spouse.
At Gilmer Law Firm, PLLC, we provide experienced, zealous representation for clients in Brooklyn divorce cases. We help clients trace separate assets, fight for fairness in property division, and ensure that inheritances and premarital assets are preserved.
Call to Action
If you are facing divorce in Brooklyn and are worried about protecting property you inherited or owned before marriage, don’t wait. Speak with a Brooklyn divorce attorney who understands the complexities of New York’s family law and property division rules.
Call Gilmer Law Firm, PLLC today at (718) 864-2011 or visit Gilmer Legal to schedule a confidential consultation with an experienced Brooklyn family law attorney.
