“I live in Ontario County, New York and currently am going through a divorce in Livingston County. Are the shares in a cooperative apartment, located in Rochester, New York, marital property where before the parties were married, one spouse purchased the shares to the apartment with the intent that the apartment would be used as the marital home?

 

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In New York State, the likely answer to this question, although specific facts could change the outcome, is that the property is in fact separate property. In a case in New York, Nell v. Nell (decided by New York’s First Department), the court ruled the shares in the apartment were separate property where the husband, before the parties were married, purchased the apartment with his own funds; and renovated the apartment using his mother’s funds. The court emphasized that while the apartment was intended to be used as the marital home, under New York’s Domestic Relations Law § 236, the shares allocated to the apartment were acquired before the marriage and, therefore, are properly classified as separate property.

However, in the same case described above, illustrating the importance of specific facts, the New York court found that although the apartment shares did not constitute marital property under New York statute, the apartment’s appreciation in value directly caused by Defendant’s work and creative talents did in fact transform the heightened value to marital property.

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