Early on in the development of the equitable distribution law the courts created a theory of transmutation. This theory holds that when a married person who owns separate property puts that property into joint title with his or her spouse, it instantly and alchemically becomes marital property. The theory has resulted in a welter of confusion as exemplified by a pair of recent decisions from the Appellate Division, Third Department.
Transmutation Theory
The equitable distribution law establishes two classes of propertymarital property, subject to distribution, and separate property which is immune from distribution. The statute is quite explicit that property is to be classified as marital or separate “regardless of the form in which title is held.”1 Notwithstanding that command, however, the judicially created doctrine of transmutation holds that when separate property is placed in joint title with one’s spouse it is converted into marital property. To fully understand and appreciate this doctrine one must look to the seminal decisions that established it during the first decade of equitable distribution.
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