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Separate Property


When filing for divorce, not all property is considered community or marital property by the divorce court. During property distribution, generally anything considered separate property by the divorce court is kept by the spouse who owns it.

What Makes Property Separate?

Property owned and controlled by one spouse either before or during the marriage is considered separate or nonmarital property. There are a couple factors the divorce court consider when determining whether property is classified as community or separate. Nonmarital property includes property:

  • Brought into the marriage
  • Inherited during the marriage
  • Received as a gift

The property must remain separate from the marital property during the marriage to be considered separate.

For example, if a spouse brings money, investments, stocks, business or real estate into a marriage and wants it be considered separate property, it must be kept in individual account. Joint accounts in divorce are considered both spouses property and responsibility so they will be divided equally.

The time the property was acquired can also determine whether property is separate or community. For example, even if one spouse bought the family home and kept it in his or her name, if the house was acquired during the marriage, it could still be considered marital property. Another example of this is retirement accounts. Even though a retirement account may be in one spouse's name, any money accumulated in the account during the marriage may be subject to property division.

Property Division Laws

Most states allow each spouse to maintain separate property during the marriage that is not divided between the spouses by the divorce court during divorce. Depending on if your state follows equitable distribution law or community property law will determine the degree of separate property each spouse can keep.

In states following community property law, the property must remain separate or not intermix with marital property for it to be considered separate property during the divorce process. Some states allow divorce courts to divide separate property between the spouses, along with marital property. The origin of the property is considered when determining property division.

It may be possible to determine how property is divided during the divorce with a prenuptial agreement or postnuptial agreement. The written contract must be reasonable and considered valid by the divorce court for the property settlement to be recognized.

Speak to a Divorce Lawyer about Separate Property

Each state has specific laws regarding separate property. A local divorce attorney could further explain divorce laws in your state and how each will affect property distribution during your divorce.

Connect with a divorce lawyer near you to learn more about marital and nonmarital property. Get advice on asset protection for property you have a vested interest in. Call 877-349-1310 or fill out a divorce case review form to get in touch with divorce attorney today.

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The above summary of separate property is by no means all-inclusive and is not legal advice. Laws may have changed since our last update. For the latest information on marital property laws, speak to a local divorce lawyer in your state.