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Marital and Separate Property – a Quick Lesson on a Tricky Subject

By: Susan E. Block and Alan E. Freed

Most people understand that when you get divorced, your property—house, bank accounts, cars, retirement, investments—will be divided between you and your spouse. Some of your property, however, your “separate” property, may not be part of that division.

If you inherit or receive property as a gift during the marriage, or if you owned property before your marriage, that property is considered your separate property, and cannot be divided by a divorce court. If you want to hold on to that separate property, you have to be able to prove that it qualifies as separate. 

Courts demand very specific proof to determine whether property qualifies as separate, and is therefore not divisible. Here are a few examples:

  • Inheritance: You need to show documents showing where the money came from. If Aunt Tillie left you $100,000 and you put it in an account in your own name, you should be able to show documentation of the source of the deposit. If you put the money into an account held jointly by you and your spouse, the situation can be much more complicated.
  • Gift: Gifts are particularly difficult to prove. The jewelry Sam and Libby bought on that Caribbean cruise may be seen by Libby to be a gift and by Sam as a joint purchase. 
  • Pre-Marital Property: This can be challenging in more than one way. It’s always helpful to have an account statement showing the balance in your account at the time of your marriage. However, to the extent you have made deposits during the marriage, or you have earned interest or dividends in the account, the account may contain both marital and separate components.

The attorneys at Paule, Camazine & Blumenthal have substantial experience in determining which property is subject to distribution in a divorce and how best to present your case to a judge. Our lawyers will assist you in understanding what you may be entitled to under the law and provide you with advice to help you achieve an equitable outcome.


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