Separate Property Defined

By Lauren Williams

In most states first step in determining the division of property in divorce is to identify what property is marital property and what property is not.  In other states the issue of whether property is marital or not is largely irrelevant because, in those states, the court can divide all property regardless of how it was acquired (Alabama, Alaska, Connecticut, Hawaii, Indiana, Kansas, Massachusetts, Montana, Nebraska, New Hampshire, Oregon, Rhode Island, Tennessee, Vermont and Wyoming).  In a few states the decision is left almost entirely to the judge (Georgia, Iowa, Utah and West Virginia).

Marital property is property acquired during the marriage, except for all property that was received by one spouse as a gift or inheritance, so long as the gift or inheritance was not comingled with marital property (such as in a joint bank account).   Also, property may not be marital property if it is the subject of a valid prenuptial agreement or was acquired after the spouses entered into a valid separation agreement.  All other property, for the most part is marital property.  In some circumstances gray areas may exist; for example, if property is acquired before marriage and later mortgaged after marriage.  Also, how the income from separate property should be allocated will vary from state to state.  Pensions and professional education as marital property are discussed separately.

Lauren Williams

About The Author

Lauren Williams is a legal writer for and the USA Law Network.