The law outlines what is marital property and what is separate property. However, the issue becomes murky when separate property was the marital residence, since often the marital residence is marital property. Real property purchased prior to the marriage does not become marital property merely because it is the marital residence (meaning that the couple lives there as husband and wife). See Burgio v. Burgio, 278 A.D.2d 767 (3d Dept., 2000) (where the husband constructed the marital residence before the marriage).
For instance, in Zelnik v. Zelnik, 169 A.D.2d 317 (1st Dept., 1991), the husband had purchased the marital residence before the marriage. The Court considered the appreciation in value of the marital residence as marital property since the wife oversaw significant renovations, planned and supervised the renovation and maintenance, and was the primary caretaker of the children in the house and the homemaker. However, since the home was husband’s separate property, requiring him to provide his soon-to-be ex-wife with exclusive occupancy of the marital residence for two years was error by the trial court, which the Appellate Court reversed. Likewise, any order of exclusive use and occupancy of the marital residence “must necessarily be limited to the extent that it will not deprive a person of his title to or possession of property he or she acquired prior to the marriage.” Gutherz v. Gutherz, 43 Misc.3d 1225(A), Sup. Ct., Kings Co., 2014).
It is important to keep in mind that appreciation of the separate property may be marital property, however. For example, in Biagiotti v. Biagiotti, 97 A.D.3d 941 (3rd Dept., 2012), the husband owned the marital residence before the marriage; it was indisputably separate property. However, the Appellate Court stated that the wife would be entitled to the value of appreciation due to her contributions and efforts. In the end, the Court awarded the wife 15% of the amount of the home’s appreciation; nothing for the home itself. See also Ceravolo v. DeSantis, 125 A.D.3d 113 (3d Dept., 2015) (where the husband had purchased the home prior to the marriage and it thereafter became the marital residence and the court also decided that the wife was only entitled to the appreciation of the value due to her efforts or contributions.)
Cari Rincker is an experienced matrimonial lawyer in New York City and is available to help families going through a divorce and separation.