What Is Separate Property in a Divorce?

Separate property is considered as an asset that maintains their independent status despite the marriage. Compared to shared marital property acquired through joint efforts, these individual assets stay with the original owner even when the couples separate. The law recognizes and protects this distinction. It also secures certain personal property during divorce proceedings.

Marital Property vs. Separate Property: The Basics

In a divorce, courts often divide marital property and separate property. Marital properties are those that the married couple acquired during marriage. Separate property, on the other hand, is property acquired before or outside of marriage.

The way marital property is divided during the divorce process depends on the laws of your state. However, remember that a handful of states use the community property approach (generally, a 50/50 split). All other property is considered separate property. This means it belongs to just one of the parties in a marriage. When a couple gets divorced, separate property is not subject to division.

Assets Considered Separate Property

Separate property belongs to just one individual before, during, and after the marriage. Separate property is sometimes called “individual property.” This consists of anything acquired before the couple got married, with a few notable exceptions.

Debt also follows these rules. Someone who enters a marriage with a heavy debt load will typically be responsible for that debt after the marriage ends. This includes student loans.

State laws determine what’s considered separate property, and while there are common patterns, there are important differences from state to state. The following are generally regarded as separate property in the context of a marital estate (unless converted to marital property by commingling, use for the marriage, or specific state law):

• Property or real estate owned by one spouse before the marriage.
• Contributions to retirement accounts or IRAs made before the marriage.
• Gifts or inheritances received by one spouse prior to or during the marriage.
• Property acquired by one spouse during the marriage using that spouse’s separate property (such as inheritance funds) with the clear intention of maintaining the acquired property as separate.
• Property/debts designated as separate in a legally enforceable contract, such as a prenuptial agreement.
• Certain personal injury awards, typically the part awarded for personal, non‑economic harm (such as pain and suffering), while amounts intended to replace marital earnings (lost wages during the marriage) are usually treated as marital property.

Factors Determining Separate Property

The definition of separate property seems straightforward. The determination of whether an asset is separate property can be complex. The following are some factors commonly considered when identifying separate property:

• Timing: Assets owned by one spouse before the marriage are separate property. However, if these assets are commingled or transmuted into joint assets, the classification of the asset can change.

• Gifts and inheritances: Assets received as gifts or through inheritance often count as separate property. This is regardless of when the assets are acquired. However, if these assets are mixed with marital assets or used for the benefit of the marriage, they may no longer be separate.

• Prenuptial or postnuptial agreements: Couples can enter into legally binding agreements that outline the division of assets in the event of a divorce. Prenuptial agreements are created before the marriage. Postnuptial agreements are entered any time after the marriage begins.

• Commingling of assets: It can be difficult to distinguish ownership when separate property becomes commingled with marital assets. For example, a separate bank account enters hazy territory if it’s used to purchase or make payments on the marital home.

If separate property has been so commingled with marital property that it’s virtually impossible to identify, it will be considered marital property. It will, therefore, be subject to division in a divorce. For instance, if a joint account (shared income) is used to pay off a car originally purchased by one spouse before the marriage, the car (or a portion of its value) will be considered marital property.

With inheritances or large financial gifts, it is not enough to put them in an account in your name only, warns Lisa Carver of The Carver Law Firm in Myrtle Beach, South Carolina. The best way to protect your inheritance or large financial gifts in the event of divorce is to either keep it in a separate account and not use it or to consult a lawyer, as inheritance money can easily be converted to marital property.

An example is a husband who received a significant inheritance. He put the money in a separate account and purchased investment properties in his name only. He felt he did what was necessary to keep his inheritance as separate property. However, he leased the properties and used the rental income for family expenses. Once he did that, he exposed part of his inheritance as marital property.

Separate Property: Community Property vs. Equitable Distribution States

Understanding the difference between community property states and equitable distribution states is important. Equitable distribution property states typically define anything registered in one spouse’s name only as separate property although they look at when the asset was acquired and the source of funds used to acquire it. Assets acquired during the marriage with marital funds are generally marital property regardless of whose name is on the title.

In community property states such as California and Arizona, spouses can use express, written premarital, post-marital, or transmutation agreements, along with other documentary evidence, to define and prove which assets are separate property. Other community property states are Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, and Alaska has an optional, opt‑in community property system.

Additionally, equitable division states may consider each spouse’s separate property. They will do so when determining how to distribute marital property equitably during a divorce. Since community property states split the marital property in half, they don’t consider each party’s separate property.

How Does Separate Property Affect Property Distribution?

Separate property can have a significant impact on the division of property. Generally, separate property is not subject to property division. Sometimes, complexities arise in the property division. When separate property is mixed with marital property or used for the benefit of the marriage, it’s less clear how it should be distributed. In a divorce case, this can lead to disputes and arguments over asset division. This can also happen with legal separations, as well.

Separate Property, Child Custody, and Child Support

It’s important to note that how child custody determinations are made has limited bearing on how property is separated. There are exceptions where the property separation influences time with children.

For example, let’s say that you and your ex-spouse shared a home that can easily accommodate your four children. But after the separation, the house goes to you. At the same time, your ex-spouse has no way to secure another space that can accommodate your four children. Your former spouse recently lost their job, and they cannot afford a place large enough for the children.

In this case, you might end up spending more time with the children, which can mean that you may enjoy greater parenting time with them. While the two of you may share legal custody of the children, you might still end up spending more time with the children. The division of property ultimately resulted in you taking the house where the children can comfortably live.

Have More Questions About Separate Property? An Attorney Can Help

Don’t let property concerns spoil the romance of your budding marriage. But it’s a good idea to know the difference between marital and separate property before things go south. If you’re concerned about separate property issues, you should get legal advice from a divorce attorney near you.

This area of family law can be hard to navigate on your own, and property laws vary from state to state. There can also be tax consequences for separate and marital property. A divorce lawyer or family law attorney can provide invaluable help. In cases where there are hidden assets, attorneys can assist, as well. Whatever your unique set of circumstances, a lawyer can help.