Property Issues During Separation

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What Are the Basic Kinds of Property?

If you are separating from, but not divorcing your spouse, two basic kinds of property are important to know about: 

How is Property Divided during Separation?

Courts divide marital property differently between separating spouses depending on where they live. In community property states, marital property is divided evenly. In equitable distribution property states, more marital property goes to the spouse who made more money during the marriage. A person has no right to the separate property of his or her spouse, and a court has no authority to divide separate property between spouses.

If a couple cannot come to an agreement about how to divide their property, a court will divide it for them based on what type of property system the state has. In such an event, if either spouse has separate property it is his or her responsibility to prove to the court that it is separate.

However, during separation many couples come to an agreement about how their property should be divided, without having a court intervene. This division of property is usually written out in a marital separation agreement. This agreement about property can later be made part of the final divorce order.

It is important to remember that separation is different from divorce because the couple is still married. This means that property that either spouse earns, even if they are not living together, is considered marital property. Whether the couple wants this arrangement to continue can be addressed in a marital separation agreement.

Do I Need a Family Law Attorney?

Separation involves different rules and considerations than a traditional divorce. Being aware of these differences can affect what property you receive. A family law attorney can help you understand how your state's laws affect your property and what you are entitled to.

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Last Modified: 06-30-2011 03:18 PM PDT

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