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What factors determine if something is separate property?

On Behalf of | Jul 1, 2024 | Divorce |

The two main categories for assets during a divorce are marital property and separate property. If something is separate property, it belongs to one person or the other individually. If something is marital property, it is owned by both of them and needs to be split up.

So how does the court determine what counts as separate property and what counts as marital property? There are a few different factors to consider.

When the assets were received

The timing is very important. Earnings and assets acquired during the marriage need to be divided, but assets that people brought with them to the marriage often do not.

If it was a direct gift

In some cases, direct gifts count as separate assets, even if they are given to a person during their marriage. An example of this could be if parents leave their child a significant inheritance. Even in divorce, the court may rule that they can keep the entire inheritance. 

If the assets were mixed together

Finally, it’s important to remember that commingling assets can change them from separate assets into marital assets. To continue with the example above, an inheritance may start as a separate asset when it is first received. But if the couple shares it or uses it for something together – like jointly purchasing a family home – then it becomes a marital asset and they both own it.

These are just a few factors to consider, and they help show how complicated property division may become. If you are getting divorced this year, carefully consider all of the legal steps you’ll need to take and how to resolve any disputes.