Who Keeps Property Acquired After Separation but Before Divorce?
Division of property is one of the key factors you’ll address in your divorce. But what happens when one of you makes purchases or accumulates debt while you’re separated but not yet divorced? How is this considered in your property division?
Property acquired after the date of separation but before divorce
You’ve decided to separate from your spouse. You’re not sure that divorce is what you want, but your spouse is ready to move on. And move on, they have.
They’ve moved into a new apartment and furnished it with all new furniture. They’ve also bought a shiny new sports car.
But wait! You’re still married! Do you now own part of that furniture and the new sports car? And are you now partly responsible for those separate residences and that shiny new car?
It depends.
Who gets this property in divorce?
Family laws regarding divorce vary by state. But whether you live in a community property state or an equitable distribution state, anything a married couple acquires during their legal union is considered part of their marital estate and divided in divorce.
Conversely, anything that was yours before you got married or was held in your name only during your marriage is considered separate property and not (usually) subject to division in divorce.
But when it comes to separation, marital and separate property isn’t quite so clear-cut. Depending on where you live, if your soon-to-be ex buys new stuff or takes on new debt during your separation, you could now be part owner of that stuff – and obligated to pay part of that debt.
Suggested: Common Questions about Divorce and the Marital Home
What are the property division laws in your state?
All states follow either community property or equitable distribution method of dividing property in a divorce.
Community property division is a 50/50 split of all marital property and debt, whereas equitable distribution takes a more nuanced approach that considers factors such as the length of your marriage or what contributions each of you made.
If you and your spouse separated prior to divorce, your state divorce laws determine whether purchases or debts acquired during your separation are considered marital property and subject to division. This can also depend on whether it is a trial or legal separation.
What are the property division laws for your type of separation?
Some states require a separation, or “cooling off period,” prior to divorce, while others don’t. Some states recognize a trial separation for purposes of property division, and some require a formal separation agreement. Some states don’t even recognize legal separations.
To further complicate that, state law also decides at what point property and liabilities acquired during a separation become separate property. In some states, it is based on the date of your separation. In others, it is when the divorce process has commenced. In still others, any property acquired during your separation is considered marital property until the final divorce decree is filed.
If you are considering a separation, you’ll want to understand your state laws regarding property division so you don’t find yourself owning – or owing for – things you didn’t agree to or didn’t even know about.
FAQ about property division after separation
What is the point of a separation agreement?
If you want to protect yourself during a separation, having a separation agreement can be crucial.
A separation agreement sets out the terms, rules, and duration of your separation. It can include things such as how you will share parenting time, who will pay for child support, and how much will be paid. It reflects whether there will be spousal support, and can specifically address spending and how you will handle property division.
The more detailed the separation agreement is, the more clarification you have regarding your responsibilities and obligations. And, as a legal contract, it can be enforced if one spouse deviates from its terms.
Is a separation agreement the same as a settlement agreement?
While a separation agreement details the terms of your separation, your settlement agreement sets out the final terms of your divorce. A settlement agreement becomes part of your divorce decree and is enforceable by the courts.
What happens to your property if you separate but never divorce?
Separation can have its benefits. But a long-term separation can be risky, especially if you have no idea what your spouse is doing financially while you're separated.
If your spouse gets into legal or financial trouble and you’re in a legal marital relationship, you could find yourself liable for their financial woes. With access to your accounts, your spouse could use joint funds and even hide assets without your knowledge.
What happens during your separation can also ultimately affect your divorce when it happens. If your spouse’s financial picture takes a turn for the worse, you could eventually find yourself with a much smaller settlement in the end.
Property division can be confusing, especially in the case of a separation. If you and your spouse can work together, creating a concise separation agreement can be your best choice. At Hello Divorce, we offer services that can help you understand your state laws and how they can affect your property during separation. Schedule a free 15-minute phone call to learn how to get legal advice for a flat fee as well as the other services we offer.
