Cohabitation before marriage may create property division issues

Posted by Lauren S. CohenAug 07, 20130 Comments

As New York readers may know, property acquired before the marriage is generally not considered part of the marital estate — even if both spouses contributed to the property's purchase.

Yet that property division law may pose problems for divorcing couples who commingled their assets and lived together for several years before getting married. A divorce court might decline to classify assets accumulated before the marriage as belonging to the marital estate. Consequently, a divorce decree might limit all such pre-existing property from its ruling.

Gay couples — in a jurisdiction where same-sex marriage is legal, such as New York — might be particularly at risk for divorce complications. Often such partners lived together for many years before marriage became legal in their state. Yet property that is not part of the martial estate, unfortunately, might be subject to federal gift tax laws.

In an uncontested divorce, matters of property division, child custody and support, and even alimony might be agreed upon by mutual consent. That agreement might expedite a divorce proceeding, saving the individuals the cost of a protracted proceeding. Yet divorcing gay couples might not have the option of expediency, even in an uncontested divorce.

Without the ruling of a divorce court, divorcing gay couples might wonder how to divide other assets, such as retirement accounts, pensions, securities where the terms of those contractual holdings don't recognize a gay spouse. At a minimum, divorcing gay couples might be saddled with the extra burden of drafting additional contracts to govern the division of assets outside their marital estate.

Source:, “For gay couples, divorce comes with extra costs,” Eun Kyung Kim, Aug. 6, 2013