During a marriage, a couple generally makes many shared purchases and co-mingles their finances in many ways. This co-mingling of money creates many complications in the event that the couple decides to get divorced. At this time, their shared property and interests need to be split and divided up. A couple can do the process of dividing up their shared assets on their own through a divorce settlement agreement they negotiate outside of court that is given legal effect by the judge when they dissolve their marriage. On the other hand, the couple can also turn to a judge.
When a judge decides how to divide property or when you agree on splitting up your marital assets, generally you will be focused only on deciding who is entitled to what share of joint property. Separate property, on the other hand, should go to the spouse who the property belongs to.
What is Separate Property?
Separate property is property that belongs not to the marital unit and that only one spouse has a legal interest in, not both. In other words, it is not property that must be split, shared or divided in the event that a marriage ends because it is not property that was acquired together or jointly.
There are several different types of property that may be classified as separate property. First and foremost, for example, any property that belonged to one of the two spouses prior to marriage and that was kept separate throughout the marriage should be considered separate property. If a spouse had a bank account before marriage, kept that bank account completely separate during the course of the marriage and did not put marital assets into it, this is clearly separate property.
Property owned before marriage can, however, become shared property if it is mingled and joined with marital assets or if the other spouse made a significant contribution to increasing its value. For example, if a spouse owned a house before marriage and the other spouse spent years upgrading and remodeling it, that other spouse earns an interest in the previously “separate” property.
Gifts given only to one spouse during marriage or inheritances left only to one spouse during the marriage are also considered to be separate property, as are rents, profits and issues that are earned from separate property as long as the assets were kept separate. If one of the spouses was injured during the marriage and received compensation for his injuries for pain and suffering, this too can be considered separate property although other parts of the settlement such as lost wages might be considered to be shared.
If you are getting divorced and are concerned about which of your property should be separate, an experienced divorce attorney can review your situation and help you to understand your property rights.