Is Gifted Money, Used to Buy a Marital Home, Still Separate Property

**prodivorcee** · 07-25-2012, 11:53 AM

My question involves a marriage in the state of:New York

I am getting conflicting information regarding my claim to separate property during my marriage. I received a gift in the form of a check made out in my name alone. I used it as part of a jointly held real estate purchase. The real estate appreciated in value due to inflation. And I have not intended to gift my gift to the marriage.

1) If the gift was 40% of the purchase price, would 40% of the appreciation be separate property? and 2) Would the original separate property gift be credited to me before the split is calculated? I have found several cases where this concept has been applied.

However, some professionals have told me that the statute DRL 236B(1)(c) states: "Marital property shall not include separate property as hereinafter defined."

I would really appreciate some opinions. My attorney just says it's up to the judge, which is true but not very helpful right now.

**Mr. Knowitall** · 07-25-2012, 04:09 PM

When you put your "separate" money into a joint asset, you may find that a court deems it to have merged into the marital estate. The full facts, including the number of years that you were in the house, can be relevant. You haven't told us anything about your experts, and obviously they would be working with a more complete set of facts, but if they don't impress your lawyer they're unlikely to impress us.

**prodivorcee** · 07-26-2012, 06:33 AM

The real estate purchased was not the marital home. It was an investment property. It was sold after three years and and the proceeds were used to purchase a marital home and another investment property that were not sold. Your opinion is appreciated.

**Foster_Foster** · 07-26-2012, 08:15 AM

Doesn't really matter what you originally used the separate money for if you sold that property and then put it into a marital residence and another investment property owned by the two of you.

You haven't said how long the marriage lasted, but the longer it lasted and the more of a chunk of the overall equity in these properties that downpayment was makes it more likely that a court would consider it all marital property.

You're free to get a second opinion based on relevant info from a different attorney. It may come down to what judge you wind up with.