Property Acquired After A Separation 2

Dealing With Property Distribution During A Separation

Property distribution is one of the most complicated aspects of a divorce , requiring the court to distinguish between marital or “community” property and property that is “separate” or held by one party only.

When parties legally separate , they are in effect establishing themselves as “living separate and apart”. Many states will address property distribution in a legal separation agreement that can then be converted into a divorce decree at a later time.

In these instances, most states agree that any property acquired after a legal separation but before the divorce would still be considered separate, however there are some exceptions to this rule.

If the parties are not legally separate for example, meaning that no official document has been filed with the court, then property acquired after the separation could be claimed as community property during the divorce proceedings.

Likewise, if the parties are not living “separate and apart”, it would be difficult to claim an item as separate when it was technically acquired while the parties were still together. The final determination would of course, be up to the court.

Also, some states do not provide for a “legal separation” in court, so it would be up to the parties to document their separation. Depending upon the laws of your state , this may or may not protect property acquired after the separation.

The way that the property was acquired is another consideration to this particular issue. If for example, income or earnings were paid from a retirement account that would be classified as community property, then the income is also considered community property, even though it was earned after the separation. Similarly, if an item is acquired by converting clearly established separate property, then the new property would remain separate, regardless of when it was acquired.

Remember, each state deals with property distribution differently so you should study the laws of your state to learn more about distinguishing separate property from marital assets.

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Discussion

  • Larry R

    While married to your spouse if she is given a car by her aunt as a gift is it considered community property or seperate property? If at that time of gifting it is considered seperate property and community funds are used to maintain and repair the vehicle does it then become community property?

  • Jessie

    Rules may vary by state, but in California, any property or money specifically gifted to or inherited by one of the parties is their own separate property. You may be able to receive credit for your portion of community funds used to maintain the separate asset.

    This response does not constitute legal advice. I am not an attorney. You should talk to a lawyer licensed in your state.