Separate property is any asset or debt that was acquired before the marriage or after separation, any property that was received through a gift or inheritance at any point, or any earnings deriving from a separate property source during the marriage.
Timing is the key issue when determining whether property is community or separate. Property characterization is crucial for determining the division of assets and debts in a divorce. For the most part, anything acquired by one spouse up to the day before marriage is considered separate property, and anything acquired after the spouses separate is also considered separate.
The date of separation can be contentious, as it is not necessarily the same date one party leaves the marital residence. Rather, it is the date that one party decides to end the marriage coupled with a positive action to be separate. This action can be something like opening a separate bank account, filing for divorce, or even something as simple as announcing separation to the other.
If the parties cannot agree on a date of separation, the court must decide. Courts usually err on the side of a later date as opposed to an earlier date to include more community property in the division. You can see how this could be a thorny issue, particularly if a spouse has received a huge bonus, closed a big deal, or earned some other asset shortly before separation.
Sometimes, it can be difficult to determine whether the property is separate or not. For example, if the marital residence was purchased with money from the sale of a separate property residence, there is some separate property interest in that property. On the other hand, if the remaining mortgage payments were paid with community income (income earned during the marriage), then the community has acquired an interest in the property as well.
At other times, separate property assets can become "comingled," or mixed up with community assets. Determining the exact nature of property can be tricky, particularly in larger estates, which is why the counsel of a competent lawyer licensed in your jurisdiction can be invaluable.
It is important to realize that in a community property state, any property acquired during the marriage is presumed to be community property. Therefore, if you receive a gift or inheritance during the marriage, you should keep copies of any documentation showing the true nature of what's in question. An inheritance can usually be easily demonstrated with probate papers and court filings. Gifts are usually less documented, so if it is a particularly valuable gift, it might be helpful to make a note at the time you received it about the nature of the property. You might even ask the giver if they wouldn't mind making a declaration that it was such. Sometimes, keeping cards that accompany the gift can be persuasive evidence of its character. A lawyer will be able to counsel you on matters specific to your case.
Separate property can be protected, and can even be changed, through the parties' written agreement. One way is to enter into a prenuptial or postnuptial agreement. These are contracts that predetermine the nature of property during the marriage as well as how it would be divided in event of a divorce. These documents can be complex, so a lawyer should always be used to draft them and to fully advise you of your rights.
Additionally, individual assets can be re-characterized (community can become separate and vice versa) in transmutation agreements. Each party must do this in writing with a clear and unambiguous statement of their intentions. Simply changing the title to reflect ownership will not be enough to change the nature of the property.
What is separate property in a community property state?
It’s property that belongs only to one spouse, typically because it was owned before marriage, inherited, or received as a gift.
How is separate property different from community property?
Community property is what you acquire during marriage. Separate property belongs only to one spouse and usually isn’t divided in divorce.
Can separate property become community property?
Yes. Mixing separate property with marital assets—like joint bank accounts or adding a spouse’s name to a title—can turn it into community property.
How can I protect my separate property?
Keep it in your name only, avoid mixing it with marital assets, and keep records proving it’s separate.
Do courts ever divide separate property in divorce?
Generally no. Courts return separate property to the original owner unless it has been commingled.
What are examples of separate property?
Property owned before marriage, inheritances, gifts, and personal injury compensation are common examples.
Review property history
Determine whether each asset was acquired before or during the marriage.
Identify inheritances and gifts
Mark assets that came through inheritance or gifts intended for one spouse.
Check for commingling
Look at whether separate property was mixed with marital assets or retitled jointly.
Gather proof of ownership
Use deeds, account statements, or financial records to show separate status.
Consult professionals if needed
A lawyer or financial expert can help confirm classification.
Keep records organized
Maintain clear documentation to protect separate property in divorce.