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5. Separate Property in a Prenuptial Agreement

The rules of community property and equitable distribution only apply to income and assets earned or acquired during the marriage. Separate property is everything a husband and wife own separately. In most cases, separate property includes:

  1. Anything owned prior to the marriage
  2. Anything inherited or received as a gift during the marriage
  3. Anything either spouse earned after the date of separation
In the event of a divorce, separate property will not be divided.

Similar to separate property, separate debts belong to one spouse. All debts incurred before marriage are separate debts. Educational or job training loans acquired before marriage are examples of separate debts.

One of the main benefits of a prenuptial agreement is that separate property can be prevented from being accidentally re-classified as joint property. This can happen when funds are co-mingled or payments are made out of joint funds. For instance, if one spouse owes a large student loan, both may agree to keep that loan as a separate debt. Then, only one spouse would be liable for the debt in case of divorce.

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