No Separate Property

By Jamie Leaver Sawyer, Esq.

While Ms. Storey vacations with her family, I have been relegated to blog substitute.  Continuing with the series of what the court cannot do, this week the focus is on the fact that the court cannot divide between the couple the separate property of a spouse.

In a dissolution of marriage or legal separation case, there are two types of property – marital and separate. Marital property includes property acquired by either spouse during the marriage. Separate property may include an asset acquired prior to the marriage or acquired in exchange for property acquired to the marriage, property acquired by gift, bequest, devise or descent or in exchange for property acquired by gift, bequest, devise, or descent, and property that is excluded by a valid agreement of the parties.

Separate property is excluded from the marital estate and, as such, cannot be divided by the Court. While the Court cannot divide the separate property of an individual, you are still required to disclose the existence of any separate property. Further, the increase in the value of separate property is considered marital property subject to division unless such increase is excluded by valid agreement of the parties, and there are circumstances in which separate property may become marital property.

Given the restrictions on the Court in dividing separate property, one of the first steps in property division is determining that which is marital and that which is separate. It is important to meet and discuss with an attorney the distinctions and to further understand that which is subject to division.