What Is Separate Property?

In the context of marriage and divorce, the distinction between separate and community property is essential to understand, especially when it comes to dividing assets. So, what exactly is separate property, and how does it differ from community property? Let’s break it down.

Defining Separate Property

Separate property refers to any assets or property that belong solely to one spouse and are not subject to division in a divorce. This property is considered the exclusive property of one spouse and remains theirs, even after the marriage ends.

There are three key categories of separate property:

1. Property You Brought Into the Marriage
   Anything you owned before you got married remains your separate property. Whether it’s a home, a car, or personal savings, these assets are typically not subject to division during a divorce, as long as they remain separate and aren’t combined with marital or community assets.
2. Gifts
   Any gifts that you receive during the marriage are also considered separate property. This could be a gift from a friend, family member, or even from your spouse. The key is that the gift was given specifically to you and not to both spouses collectively.
3. Inheritance
   Inherited assets are another category of separate property. If a family member passes away and leaves you money, property, or other assets in their will, these remain your separate property, as long as they are kept separate from marital assets.

Keeping Separate Property Separate

One important aspect of maintaining separate property is ensuring that it remains distinct from community property, which refers to any assets acquired during the marriage. The term for mixing separate and community property is called “commingling.”

For example, if you receive an inheritance and deposit it into a joint bank account shared with your spouse, that inheritance may lose its status as separate property because it has been commingled with marital assets. Similarly, if you use separate property to purchase an asset that benefits both spouses, such as a family home, the lines between separate and community property can blur, making it harder to argue that the asset belongs exclusively to you in the event of a divorce.

To preserve separate property, it’s crucial to keep these assets in your name only and avoid mixing them with joint or marital assets.

Why Does the Distinction Matter?

The distinction between separate and community property becomes especially significant in divorce proceedings. Community property is typically divided between the spouses, while separate property remains with the original owner. Understanding what constitutes separate property and how to keep it separate can help ensure that you retain sole ownership of those assets during a divorce.

Examples of Separate Property

• Pre-marital assets: A home you purchased before getting married that remains in your name.
• Gifts: Jewelry given to you by your parents on a special occasion.
• Inheritance: Money left to you in a will by a family member, kept in a separate account.

Final Thoughts

Separate property is any asset you bring into the marriage or receive as a gift or inheritance, and it remains yours as long as you don’t commingle it with community assets. The key to protecting your separate property is to keep it separate from marital assets and avoid mixing it with community property. In the event of a divorce, this distinction could make all the difference in securing what is rightfully yours.

If you have questions about separate property or need help with asset division in a divorce, consulting with a family law attorney can provide clarity and help protect your financial future.