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Asset Protection (equitable distribution): Gift to one spouse New York.

Posted on Mar 27, 2014 by admin in blog news

New York Domestic Relations Law Section 236(B)(1)(d) defines separate property as:
(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3) property acquired in exchange for the increase in value of separate property, except to the extent that such appreciation is due in part to the contribution or efforts of the other spouse;
(4) property described as separate property by written agreement pursuant to subdivision three of this part.
The case law has qualified this exclusion to instances where these gifts were kept separate from other marital property and under control of the spouse receiving the gifts. Once funds are commingled, the assets are placed into the marital estate, at least to the extent of the commingled amounts. N.B. v. R.B., 2006 NY Slip Op 50882(U) (NY 5/11/2006), 2006 NY Slip Op 50882 (NY, 2006).

It must also be recognized, however, that the term “marital property” is to be broadly construed, while the phrase “separate property: is to be narrowly construed. Judson v Judson, 255 AD2d 656 [3rd Dept 1988] citing Price v Price, 69 NY2d 8 [1986]. As the court in G.K. v L.K., 27 Misc 3d 1239(A) [Sup Ct Kings Co 2010] observed:
Separate property, an exception to marital property, is to be narrowly construed [see Farag v Farag, 4 AD3d 502 [2nd Dept., 2004]. Hence, the law favors the inclusion of property within the marital estate (compare Domestic Relations Law 236 [B] [1] [c] and [d]; see Burns v. Burns, 84 NY2d 369, 374 [1994]; Majauskas v. Majauskas, 61 NY2d 481 [1984]), and, accordingly, “the party seeking to establish that a particular item is indeed separate property bears the burden of proof” (LeRoy v. LeRoy, 274 AD2d 362 [1st Dept 2000], citing Seidman, 226 AD2d at 1012; Heine v. Heine, 176 AD2d 77, [1 Dept 1992], lv denied 80 NY2d 753 [1992]). When a party commingles separate funds with marital funds and assets (see Hartog v. Hartog, 85 NY2d 36 [1995]; Lynch v. King, 284 AD2d 309 [2nd Dept., 2001]), it is that party’s burden to trace the source of the funds with sufficient particularity to rebut the presumption that they were marital property (Massimi v. Massimi, 35 AD3d 400 [2nd Dept., 2006]; see also Bennett v. Bennett, 13 AD3d 1080 [4th Dept 2004]). A.C. v. J.O., 2013 NY Slip Op 51323 (N.Y. Sup. Ct., 2013)

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