When spouses marry, they combine their lives and their finances. They might start sharing a checking account. They move in together and integrate their lives. They combine their incomes to enjoy a higher standard of living than either spouse could afford on their own. Divorce requires the complete opposite process.
Spouses have to take what was once shared and make plans to separate those resources and obligations. They may need to temporarily adjust to a slightly lower standard of living as they develop separate households and split their assets. Property division can be a challenging process. Equitable distribution rules make property division outcomes difficult to predict. What is fair in one case might be unreasonable in a different situation.
To facilitate a fair division of property, spouses have to provide information about all of their assets. They then negotiate with one another or prepare to present their situation to a family law judge. Some assets are not subject to division because they are separate property.
What resources can spouses expect to retain when they divorce?
There are several kinds of separate property
The family courts allow people to claim certain resources as separate property based on specific justifications. Frequently, one of the most important considerations is the timing of asset acquisition.
Resources that people purchase and income that they earn before they marry are usually not subject to division. The spouse who entered the marriage with valuable property can often retain those resources when they divorce.
Spouses may have signed a prenuptial or postnuptial agreement. This contract between spouses may specifically designate certain assets as separate for the purposes of asset distribution.
Provided that the agreement is valid, property designated as separate in a marital agreement is usually not divisible during divorce proceedings. Individuals can also protect property that they receive as part of an inheritance or as a gift from people other than their spouses.
Occasionally, there may be some controversy about separate property if there are allegations of commingling or mixing separate assets with marital property. Spouses may need support as they work to evaluate their assets and financial obligations.
Identifying and protecting separate property is an important component of the property division process. Reviewing personal resources and financial records with a skilled legal team can help people determine what assets they need to divide and what property they can retain when they divorce.