Family Law

Getting Married and Keeping Separate Property

By Kristina Otterstrom, Attorney

Talk to a Local Matrimonial Law Attorney

Under some states’ family law codes, when spouses fail to keep their separate property truly separate, it can become marital property, meaning owned jointly by the couple. If this happens in your own marriage, and your and your spouse eventually divorce, you may be forced to share your once personal property with your ex. It can become especially complicated if you have children from a previous marriage and want to preserve certain assets for them.

There are ways to keep your assets separate--even after marriage--but it takes careful planning. You may want to meet with an attorney as part of your wedding plans. In some cases, you may need a prenuptial agreement, especially if you own a lot of property prior to marriage.

Do I Need a Prenuptial Agreement?

The simplest way to delineate who gets what in a divorce or via inheritance is through a detailed prenuptial agreement. In an ideal situation, a divorcing couple would have already divided their property and assets through a prenup, but most divorce cases aren’t so clear-cut.

You may want a prenup if you have significant assets or have a family business. The laws governing prenups vary from state to state, so you should contact a local attorney to see if you’d benefit from a premarital agreement.

Can I Keep My Property Separate Without a Prenup?

For some couples, even suggesting a prenup can ruin wedding plans. There are ways to keep separate property from becoming marital property without a prenup, but it may take some extra effort.

Family Businesses

Some families spend a lifetime building and maintaining a family business. It would be devastating to have to divide up a successful family business because of a divorce. If you want to keep your family business “in the family,” it’s important not to give your spouse control over any aspect of the business. For example, all shares should remain in your name alone. Be careful about working for the family business during your marriage, because your spouse could acquire a marital or community property interest in the value your efforts added to the business. Your contributions to a family business during marriage may also be construed as marital income, which might be subject to division upon divorce.

Gifts or Inheritance

Typically, a gift or inheritance (whether acquired before, during, or after marriage) is separate property. But it can get complicated if the gift is a home or other property that's used or improved during the marriage. For example, if you receive a car as a gift, it can become marital property--or your spouse could gain some legal interest in it--if you use marital funds to improve, repair, or maintain it. A judge could decide to compensate your spouse for improvements to the vehicle. However, you can protect yourself by not using marital funds to add to the value of or maintain any gifts or inheritance.

Also, be careful not to commingle or mix your separate property gifts or inheritance with marital property. Commingling happens when a spouse deposits separate property funds into a bank account that contains marital funds. When separate property and marital funds are placed into the same account and used to pay expenses or debts, or to buy items during the marriage, it may become too difficult for a court to later trace what happened to the money over the years: If this happens, the court's default solution will be to decide it's all marital. Avoid this problem by keeping your own funds in a separate, individual account.

Seek out a local attorney for advice if you have any questions about keeping gifts or an inheritance separate.

Property from a Previous Marriage

If you’re going into a second marriage, you likely have property or assets from your first marriage that you want to keep separate. This becomes especially important if you have children and want to protect their inheritances. For example, if you received a home as part of your divorce settlement, and you live in that home with your new spouse, you'll need to remember that any contributions toward or renovations of the home will be construed as marital contributions, meaning your new spouse would have a claim on at least some portion of the home's value if you got divorced. You can avoid this by not living in the home and not using any marital funds to improve the property during your second marriage. If you do plan on living in the home, you'll need to spell out your desire to keep it fully separate in a prenuptial agreement.

Questions for Your Attorney

  • If I’m planning on remarrying, what kinds of property should I keep as separate property?
  • How do I keep my interest in an existing family business from becoming marital or community property?
  • How do I ensure that my children from a previous marriage will inherit specific property from me?
  • Can the way I use separate property change the classification of the property from separate to marital?
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