Key Takeaways:
- Documentation is critical: Proving ownership of separate property means having clear evidence, such as deeds, purchase agreements, bank statements, and even witness testimony, that shows you acquired it before marriage and kept it separate.
- Courts apply different standards: In equitable distribution states, marital property is divided fairly but not necessarily equally. In community property states, it’s split 50/50.
- Intent matters in transmutation: Adding your spouse’s name to a title or using inheritance for a joint purchase can legally change separate property into marital property.
- Proactive protection strategies work: Keeping separate accounts, getting property appraisals before marriage, maintaining thorough records, and discussing assets openly with your partner can help preserve ownership rights.
A marriage represents a union between two individuals, each of whom has had their own life prior to getting married. Many people bring property from their pre-marriage lives into their marriage.
Generally speaking, what happens to property owned before marriage in the course of a divorce is that the property is considered separate property that’s not subject to division. However, this isn’t always the result.
In this article, we discuss the complexities of property division in the context of divorce. We explore what happens to property owned before marriage, how marital assets are classified and what steps you can take to protect your separate property in the event of a divorce.
How is property divided in a divorce?
One of the primary issues in divorce proceedings is the division of property belonging to the parties.
Not all property is subject to division between spouses in a divorce. Whether specific property must be divided typically depends on whether it is considered marital or separate.
What assets can be split in a divorce?
When you go through a divorce, not every asset is automatically divided. The court will examine whether each item is marital or separate property, and only marital property is subject to division. Understanding the difference is the first step in protecting what’s yours.
Marital property
Marital property is what the court can divide between you and your spouse. It generally includes anything acquired during the marriage, regardless of who paid for it or whose name is on the title. Common examples include:
- Real estate purchased during the marriage
- Vehicles
- Joint bank accounts
- Retirement accounts
- Investments
- Business interests started after marriage
- Household items and personal property
- Debts taken on during the marriage
Tip: If you acquired an asset before marriage or after separation, it might not count as marital property, but you’ll need proof.
Separate property
Separate property usually belongs only to one spouse and isn’t divided in divorce. It can include:
- Property owned before marriage
- Inheritances or gifts received by one spouse during marriage
- Property specifically listed as separate in a prenuptial or postnuptial agreement
- Professional degrees or licenses belonging to one spouse
Tip: Keep records of when and how you acquired separate property, and avoid mixing it with marital assets to maintain its separate status.e should be considered separate property. Also, avoiding mixing your separate property funds with your spouse’s or shared marital funds may help prevent your separate property from becoming marital property.
Jurisdictional considerations
Jurisdictional considerations significantly determine how your property may be classified and divided during a divorce. For example, some states follow principles of equitable distribution, whereas others follow community property principles.
In states that follow equitable distribution principles, courts typically divide property between the spouses in an “equitable” manner, meaning that property is divided fairly but not necessarily equally. In community property states, courts typically take any property determined to be marital property and divide it equally between the two spouses.
When separate property may become marital property
While separate property most often remains with the respective owner, some exceptions exist. Below are two situations where separate property may become marital property subject to division between the parties in a divorce.
Commingling of funds
Sometimes, separate property loses its protected status because it gets mixed with marital assets. This blending of funds can make it difficult to prove what originally belonged to you alone.
- When does it occur: Separate property is mixed with marital property, such as depositing inheritance money into a joint account.
- What’s the result: The funds become harder to trace, and the court may classify them as marital property to be divided.
Transmutation
In some cases, separate property becomes marital property because of intentional actions that show you wanted to share ownership.
What’s the result: The property is treated as marital and may be split in a divorce. considered a type of transmutation.
When does it occur: One spouse intentionally changes the nature of separate property into marital property, often by adding the other spouse’s name to a title or using separate funds for a joint purchase.
How to prove separate property in divorce
Proving separate property in a divorce involves providing evidence to demonstrate that the property is indeed separate and not marital property subject to division between the parties.
While the specifics may vary depending on jurisdiction and individual circumstances, here are some common methods for proving separate property:
- Clear documentation—such as deeds, purchase agreements and bank statements—that establishes ownership of certain property prior to the marriage.
- Tracing or tracking property through various transactions back to determine its origin and how it was acquired.
- Witness testimony from individuals, such as family members, friends, or financial advisors, who have knowledge of the property’s ownership history and may be able to attest to its separate nature.
How do courts determine ownership of premarital assets during divorce?
Courts use a detailed legal process to determine whether an asset is premarital or marital. Judges review documentation such as purchase contracts, financial statements, titles, and deeds to confirm the date and circumstances of acquisition. The key is proving that the property was acquired before the marriage began.
They also consider whether the asset has been commingled with marital funds, improved using joint contributions, or increased in value due to marital efforts. Forensic accountants and other experts may be brought in to trace funds, calculate appreciation, and clarify ownership in complex cases.
If the court finds evidence that the asset’s separate nature was altered, it may reclassify it as marital property and include it in the division.
Ways to protect your premarital property
How your property is classified (separate property or marital property) can significantly impact what happens to property owned before marriage in the event of a divorce. Ultimately, the judge presiding over your case may decide the classification of your property.
However, there are several ways to try to maintain your premarital property’s separate status and prevent it from being considered marital property should a divorce arise. Below are some options to consider before getting married:
- Engage in open and transparent discussions with your partner regarding your individual finances and financial goals.
- Identify, document and keep a record of any property or assets that belong to you.
- Enter into a prenuptial agreement with your partner that clearly identifies any separate property and outlines how to handle premarital assets in the event of a divorce.
- Consider obtaining valuations or appraisals of your premarital property to help establish the value of your separate assets before the marriage.
Even after getting married, there are steps you may take to protect your premarital property’s separate status:
- Enter into a postnuptial agreement that identifies the separate property of the parties and addresses how to handle it in a divorce.
- Maintain separate accounts, keeping premarital assets separate from marital assets to help preserve their separate status.
- Keep thorough records and documentation of any premarital assets and financial statements that may help identify and establish your separate property during a divorce.
How a lawyer may help with property division after divorce
Understandably, many people don’t think about divorce as they start their marriage. But as much as you may not want to think anything could go wrong, it may benefit you to consider the potential of a divorce. After all, if this happens, protecting your assets and interests will be paramount.
An experienced family law attorney can help you:
- Identify any separate property that may belong to you should your marriage end in the future
- Prepare a prenuptial or postnuptial agreement to address the division of property in the event of a divorce
- Create and implement strategies to protect and preserve your property interests
- Advocate for your property rights in the event you have a divorce
Wherever you’re at in your marriage or divorce process, discussing your legal rights and options with an attorney may bring you peace of mind or help you proceed with your case.
