Separate Property Divorce

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Separate Property is also called as Immune Property. This is the property that is owned by a single partner before marriage. In a majority of states in the US, this property is not considered for division between the spouses after divorce. Prenuptial agreements play a role in establishing separate property.

Dual Classification states in Separate Property Divorce

All the states in the US (excluding those mentioned in tables below) follow Dual Classification method. Here, the total property of spouses is categorized into marital and separate property. The separate property is not distributed but allotted to a single partner who owns it.

Kitchen Sink states in Separate Property Divorce

In these states, the separate property is regarded as a section of the marital estate. Consequently, the separate property is also considered for distribution during a divorce. This procedure is observed in the following states. Accordingly, inheritances and gifts between spouses can also be taken into account for separation.

If the court finds it necessary to include separate property for distribution in the following states, then they also become Kitchen Sink states.

Blending of Separate Property with Marital Property in a Divorce

• The property owned by a person prior to his/her marriage is termed as 'separate property'
• However, it continues to be so only if it is retained apart from marital property. In other words, the person should retain this property on his/her name only
• Some individuals commingle separate property with marital property. In such cases, the separate property becomes a section of marital property. Some examples of such occurrences is described below

Example 1

A man has a bank account and has 1 million USD balance in it prior to marriage. After the man marries, he and his wife consistently deposit their paychecks in this account. They also make withdrawals from this account for their daily expenses. After 10 years, they apply for a divorce. When they separate, this account has 0.7 million USD balance.

The court reasons that paychecks (marital property) have been deposited in this account and marital debts have been repaid from it. Hence, presently it is not possible to distinguish the original separate property from this marital property. The court concludes that the past separate property has been converted to marital property. This property is now eligible for distribution.

Example 2

An individual sells his separate property. The money obtained from this sale is used to purchase an object that supports marital life. There is considerable probability that this new object would be considered by the court as marital property.

Example 3

A person owns a residence prior to marriage. After this person marries, this residence is used as the marital residence. This house might probably be regarded as marital property.

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