What is ‘Separate Property’ in a Divorce?

We’ve tip-toed around the issue a bit lately. We covered the splitting of debt in a divorce, including separate and joint debts. We’ve introduced the fabulous FindLaw Guide to Divorce and Property Division, which gives you an overview of the process.

However, what the guide and our previous coverage lack is a definition of what exactly is separate (or “non-marital“) property in this fine state?

The answer isn’t exactly clear. Here are a few things that almost always are separate property:

  • Inheritances
  • Gifts to one spouse from the other
  • Gifts to one spouse from a third party
  • Assets acquired pre-marriage that are kept separate
  • Assets acquired post-separation
  • Anything covered by a prenuptial agreement

However, as with many things in law, there are no absolutes. Even your separate inheritance from Great-Aunt Bernina can become joint property. This is true even if dear Bernina hated your spouse.

How? It’s called commingling. Dirty, dirty commingling.

Aunt Bernina’s lawyer cut you a check. Where did you deposit it? If it was a joint account, or it was placed into an account with fund that may be joint property (like your salary), it can become commingled and turn into joint property.

The court doesn’t want to go over your bank ledger and say, “Hmmm, well, there was $30k from Bernina, $1k per month in salary, and $800 towards rent, so … ” Instead, your ex-spouse will probably get $15k in free money.

To keep ’em separated, you’ll want to put separate property funds into a separate account, with any account fees taken out of separate property. Or, to keep your sanity and prevent yourself from having 37 different bank accounts, you can sign a prenuptial agreement.

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What is ‘Separate Property’ in a Divorce?