There are some items which are not considered marital property but the “separate property” of one spouse. Separate Property is not subject to division in a divorce. Here is what is considered to be separate property:
- An inheritance to one spouse. If a relative died and left something to you, such as a house or a car, it is separate property and not to be considered part of the marital assets to be divided.
- Real estate or personal property that was acquired by one spouse prior to the date of the marriage. If you got your house before the marriage, it is your house and not subject to division (See exceptions).
- Any real estate or personal property that is excluded by a valid prenuptial agreement.
- Compensation to a spouse for the spouse’s personal injury. Exceptions to this are a loss of marital earnings and compensation for expenses paid from marital assets.
- A gift of real estate or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse. If you can show that a gift made by your mom or dad, for example, was for you and not to you and your spouse, it is separate property.
Even though real estate was brought into the marriage by one party and is their “separate property”, perhaps the other party has financially contributed to that property or has improved the property through their labor. The appreciation in the value of the property as a result of this financial contribution or labor can be considered in the division to be made in the dissolution or divorce.
The commingling (putting one with the other) of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable. This means that if you brought money or some asset into the marriage it is separate property unless it is impossible to trace it now.