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Legal How to: Keep Separate Property Separate

By Christopher Coble, Esq. on March 24, 2015 | Last updated on March 21, 2019

Marriage is the joining of two worlds, and two worlds of belongings. But the personal property you bring into a marriage will normally stay yours as separate property, if the marriage comes to an end.

Are there exceptions to this rule? And how can you ensure that your separate property stays separate and does not become marital property which can later be split?

Here are a few things to keep in mind when trying to maintain your separate property:

Separate Property OR Marital Property?

As noted above, separate property includes your assets, financial and physical, that you own prior to being married. This can be a car, family heirlooms, or a stock portfolio. Debts, such as credit card loans, can also be separate property.

In most cases, separate property will remain yours throughout the marriage, and belong to you should the marriage end. Marital property, on the other hand, includes of the property acquired during the marriage and is considered jointly owned by both spouses. Therefore, marital property will be split between the parties after the marriage.

(How this split occurs, and whether educational debts are included, can depend on if you live in a community property state or not.)

Separate Property AND Marital Property

One exception to the separate property / marital property distinction is when separate property becomes so mixed up with marital property that it can't be identified, and is therefore treated as marital property. This can be problematic if you're worried about maintaining some property, i.e., a pre-existing trust fund, as separate.

One easy way to keep separate property separate is through a prenuptial agreement. Though "prenups" may get a bad rap, they don't need to be complicated or contentious documents in order to simply lay out a plan for separate property in case of a divorce.

Otherwise, it is best not to intermingle separate and marital property. Maintain separate accounts for separate financial assets, and keep your things in your name. You probably don't have to worry about using your late aunt's coffee table in the living room, however -- most easily-identifiable inheritances will remain separate property.

If you have further questions about separate and marital property, you can consult with an experienced family law attorney in your area.

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