Is Property that I Acquired During a Separation Considered "Marital Property"? 6

The Status of Property Acquired Before the Divorce is Final

When a couple chooses to marry, any property they acquire after the wedding is considered to be part of the marital estate, with a a few exceptions. If the parties divorce, the accumulation of marital property ceases and any property acquired thereafter is considered to be separate property.

But what happens when the couple is separated? Is the property community or separate?

That will all depend upon the type of separation you have and the laws of your state but generally speaking, any property acquired during a legal separation is considered to be separate property and not subject to the marital estate.This “separate” status would remain true for the property in question after the parties reconciled as well since the property was acquired while the marriage was legally “suspended”.

However, it should be noted that separate property can become marital property through a process called “commingling “. Essentially, this occurs when separate property is mixed with or used to acquire marital property and the distinct separate ownership becomes too muddled to sort out.

In the event that you are legally separated and considering reconcilation with your spouse, you may also want to consider drafting a post-nuptial agreement to identify your separate property acquired during the separation and protect it from becoming part of the marital estate should the reconcilation not work out.

A post-nuptial agreement can be an inexpensive alternative to battling it out in court later and don’t require an attorney to create. Click here to learn more about drafting your own post-nuptial agreement .

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Discussion

  • Lori

    Question: In Jan 2004 my father passed and I inherited his home. In May 2005 my husband & I separated, jointly filed for a divorced and ceased living together. Each year since we have filed taxes married filing separately at our separate residence. In 2007 I finally put my father’s home in my name & took out a mortgage on it to pay inheritance to 2 of the other’s named in the trust. In 2010 my husband purchased a home with his VA benefit. Bottom line, we each have a home & we each have a mortgage in our own names and we are still married but have been separated for 5 years. I understand I am not eligible for the tax credit because I mortgaged in 2007. He should be eligible for the new home owner tax credit because he purchased in 2010. His mortgage company is telling him he is not eligible because we are married and I own a home. Yet this site tells me that property acquired during a separation is not joint property. So, which is it?

  • Ron

    Before i got married, my wife and i purchased a vehicle together. However her credit was not good enough to be on the title so it was in my name. As time went on we had problems and a restraining order was put in affect, stating i could not take the vehicle, she made promises to pay the note and insure the vehicle. The restraining order is up and the truck is almost 3 months past due and she dumped the truck on me. We got married after we purchased the truck, do i have any grounds or am i just going to have to bite the bullet on this one?

  • Sharon

    I purchased property prior to my marriage. We later divorced-during this time I purchased more property & 2 homes. We later re-married and are now in process of divorce. I live in Arkansas which I believe is not a community property state. Since I was single during both property purchased will I be able to keep these and not have to share w/my husband.

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  • Scott

    I live in the state of Virginia as does my wife. We signed a pre-marital agreement prior to marriage that separates all our assets. My wife and I decided to separate and file a property settlement agreement as of June 6, 2011. I moved to the spare bedroom on June 6, 2011 and permanently moved out of the house on Sept 1, 2011. The intent was to live separate and apart, separate and ultimately be divorced with no chance of reconciling. The legal separation papers have not been filed yet as of 10/30/11, but will be filed by 12/1/11. My question is, am I able to by a home prior to the ‘legal’ separation without my wife having an interest in this asset if I am buying with my own assets?

  • Laura

    My husband and I filed for divorce in may and I am going to be buying couple of things that I don’t want him to have, we filed saying we will take our own personal property and we have nothing together can he claim it?