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Husband’s Down Payment to Purchase Home Considered Separate Property

family law attorneyIn a recent decision, the Appellate Division of the Third Department, an appeals court, has upheld a Supreme Court decision which found the down payment a husband used to purchase the marital residence was the husband’s separate property.

The Case

The parties to a marriage purchased a home 5 months after they were married. At that time, the husband put $33,000 of his separate property into a joint bank account with his wife. This took place approximately a month before purchasing the home. $25,000 from the account was used as a down payment in the transaction. There was a divorce trial on the issue of equitable distribution of marital assets in the Supreme Court. The judge held in that proceeding the $25,000 in funds were the husband’s separate property and he was given a credit for this amount concerning the distribution of the parties’ assets. The wife, unhappy with this decision, brought an appeal to the Appellate Division of the Third Department.

Separate Property

The Supreme Court judge who heard the equitable distribution portion of the divorce case had found the funds were the husband’s separate property based on the timing of the deposit on the purchase of the home, his ability to trace the source of the funds, and the husband’s testimony they were only placed in the joint account because it was the same bank the parties’ obtained the mortgage from. On appeal, the Appellate Division found no basis to overrule the decision of the Supreme Court judge with regard to the designation of the $25,000 as separate property.

The appellate court did find the Supreme Court judge made a mistake in directing the immediate sale of the marital residence. The appeals court found the law indicated a preference to allow the residential custodial parent to remain in the marital residence until such time as the youngest child reached the age of 18, except in special circumstances which were not present in this case. The court therefore ruled the wife was entitled to exclusive possession and occupancy of the marital home until the youngest child was 18.matrimonial attorney

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