In a divorce setting, “separate property” is any property that was acquired individually by a partner before the marriage occurred.  It can be acquired by purchase, gift or other means of acquisition; however the main characteristic is that it was intended to be owned only by one spouse rather than jointly by both partners.  

Separate property also includes property that has been specifically identified as separate property in a contract, pre-nuptial agreement, or other types of legal documents.

In contrast, “shared property” or community property is property that is accrued by both partners during marriage, and that is owned jointly by each partner. 

What Happens to Separate Property in a Divorce Proceeding?

Upon divorce, separate property is treated differently than shared property.  The separate property is retained by the original owner during the divorce process.  Thus, for instance, if one party individually owned a home before the marriage, this property is generally classified as separate property.  The owning partner then retains full title to the home after the couple files for divorce.

Shared property is subject to the divorce laws specific to each state.  In most cases, shared marital property is divided evenly (50-50) between the partners.  Thus, it is important that the parties be very clear about which property is classified as separate property, and which property is considered to be shared communal property.

Are There Any Exceptions to Separate Property Laws?

There are a few exceptions to the laws that govern separate property in a divorce.  These may include:

  • Specific instructions:  If the owning partner has specific instructions about the property, and such instructions are listed in a valid written contract, they may be able to change separate property into shared property, and vice versa.  This may depend upon the consent of the other partner
  • Property improvements:  If one partner has contributed improvements to the property, it might actually reclassify the property as shared property.  The other partner may be entitled to a share of the property (usually in amounts equivalent to their investment in the improvement, and full rights to the property)

Also, separate property divisions may arise according to a judge’s discretion, so long such classification is not illegal and still conforms to the laws for that particular region.

Do I Need a Lawyer for Help With Separate Property Laws?

In any divorce proceeding, the division of property between the parties is one of the main concerns of the trial.  You may wish to contact a family lawyer immediately if you will be dealing with divorce and property issues.  Your lawyer can help with the classification of properties to determine which property you will be entitled to.  Also, your lawyer can be on hand to provide you with helpful legal advice during the actual court proceedings.