What Is Considered Separate Property In A Divorce?

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Divorce Law
This article was reviewed and approved for publication by Attorney Charlotte Christian.
is alabama a community property state

Assets are all considered during a divorce. When it comes to property, there are two general types involved in a divorce – communal assets and separate property.

Which assets are considered communal or community or separate is dependent on the state you live in, but in general, the law assumes everything you acquire during the marriage prior to separation is considered community property unless it is a gift or inheritance to only one spouse.

The result is similar in all states, the great majority of which applies to marital property and equitable division principles, so understanding the laws in your state is imperative. Figuring out what is community property and what is separate property can be extremely complex, especially when you are dealing with long-term marriages or high-asset divorces, and especially with co-owned businesses.

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Separate Property in a Divorce

As a rule, separate property, or separate assets, are the funds, properties, investments, heirlooms, inheritances, or other possessions you own independently – items with only your name listed on any proof of purchase. This typically includes assets you owned prior to your marriage, things you inherited, items you bought with your own personal funds or things you received as a gift.

Any assets used for both you and your spouse (such as vehicles, retirement accounts, house purchases, etc.) or purchased through shared accounts, even if purchased by only you, will usually be considered community property. Some debts can also be considered separate, such as student loans or credit card debt you acquired before your marriage, but those debts incurred within marriage will be included in the division.

Understanding the Value of Property

The way in which the communal and separate properties are divided depends on numerous factors, but mostly on the life circumstances of each spouse, like economic and vocational standing, and the length of the marriage. The important thing to remember is that each court follows a different set of rules for property division. Each divorce case is unique and each court will award and divide property accordingly. For this reason, separate property may sometimes be included in that division.

The division may also depend on any personal sacrifices of the marriage. If one spouse stayed home with the children during most of the marriage while the other acted as the chief breadwinner, the latter would likely have more valuable separate assets, but the court wouldn’t likely judge everything only from that information. In this situation, the court may recognize the value of the stay-at-home spouse by awarding that spouse more of the communal assets, to level the playing field, so to speak.

To determine how property will be divided, the monetary values of both communal and separate properties have to be legally determined. If you are walking through property division issues, each of your respective lawyers, and sometimes financial advisers or accountants, will try to help you and your spouse assess the value of your personal properties: your home, additional properties, vehicles, investments, heirlooms, benefits, and any debts.

Let The Professionals Help You

The only way you can truly ensure that your property division issues are handled correctly is by partnering with an experienced attorney who will work to keep your best interests at the forefront of your divorce proceedings. If you’re located in the state of Alabama, please contact us at the Charlotte Christian Law. We can walk you through every step of your property division. Call us today!

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