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What Qualifies As Separate Property In Divorce?

On Behalf of | Jun 7, 2023 | Divorce | 0 comments

One crucial step in a divorce is classifying whether an asset is a marital or separate property. Marital property refers to assets you acquired during the marriage, while those you own independently are separate property. While this seems straightforward, certain factors can qualify portions of separate property as marital property.

Types Of Assets That Qualify As Separate Property

Generally, separate property refers to assets that an individual owned before or after marriage and gifts and inheritance.

  1. Assets owned before the marriage

Anything you owned before marriage, such as a savings account, home or car, should be yours. However, claiming all of it during divorce is not that easy. If, during the marriage, you and your spouse mixed those assets, they may no longer qualify as separate property.

For instance, a house you owned before marriage should be separate property. However, suppose your spouse contributed to raising its value, such as by remodeling or maintaining its upkeep. In that case, they may claim a portion of it.

  1. Inheritance or gifts from people outside the marriage

The law respects that when a will or trust names only you as a beneficiary, the testator intended those assets only for you. In the same way, if someone gave a gift exclusively to you, it is rightfully yours. Your spouse should have no claim in these assets unless you mingled it with marital property.

When Does Separate Property Become Marital Property?

No two divorces are exactly the same, so depending on each spouse’s circumstance, the court may decide to qualify a separate party as marital property. Generally, there are two known ways that make assets more difficult to distinguish:

  • Placing a separate property under the names of both spouses (ex. Adding a spouse to a savings account you had before the marriage)
  • Commingling or mixing separate property with marital property (ex. Using inheritance to pay for the family home)

Commingling assets make property division more complex than it is and even more so for long-term marriages. To protect your separate property, you will have to review your legal documents and provide proof in court that it is rightfully yours. Because the whole divorce process is so tedious, sometimes working with a divorce attorney who already knows the ins and outs of family law courts can help make it much smoother.