What is separate property?

As you begin to work on a divorce agreement, you will need to make many decisions. Property division will be one of the more complex issues you must handle.

When dividing your property, you need to understand the difference between marital and separate property. Martial property is something you and your spouse own that you will split, but separate property belongs only to you, and you retain it after the divorce.

Basic definition

In general, separate property is anything you owned or earned prior to the marriage. It also includes some property designated by law as separate, including inheritances and gifts. These items belong to you only and will not be something you have to divide with your spouse in the divorce.

What it is not

It is important to note that you cannot create separate property because the distinction is when you received it. The only exception is for those special categories of assets, such as inheritances, which are yours by law. In all other situations, you cannot make something separate property. For example, many people think if they keep their paychecks in a separate account under their name only that it keeps that money separate. That is not true. You earned the money during the marriage, so it is marital property.


There are a number of issues that could arise with separate property that could turn it into marital property. You may use martial property to help with the upkeep of separate property, which will blur the lines between whether it remains separate or not. For this reason, property division can become rather complex and difficult.


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