updated September 1, 2023 · 3min read
You're thinking about getting divorced and you're concerned about keeping your premarital property. You may have heard rumors that property you brought into the marriage remains yours and that a court won't divide it upon divorce. That's the general rule, but it's subject to many exceptions.
There are ways you can protect your premarital assets so you can keep your separate or premarital property in the event of divorce.
This requires some action on your part and knowing how to keep your separate property truly separate.
When a court reviews the property you and your spouse own, the court will divide the marital property and will generally allow you to keep your separate property. Marital property is most of the real estate and personal property you acquire after you're married. Separate property is:
The problem with keeping property before marriage your separate property is that separate property can become marital property in several ways. If a court finds that your separate property has become marital property, your premarital assets are not protected.
There are things you can do to ensure that your separate property remains separate.
Your spouse may actively increase the value of your premarital home by making significant improvements. Likewise, sometimes the value of your property can increase without you doing anything to it. It's important to understand the difference between active assets and passive assets:
Items that increase in value because you and your spouse took action, such as improving your home are considered active assets.
If your spouse added money to your separate bank account, that action changed the separate account into a marital account.
Active assets are subject to distribution and can make separate assets become marital assets. In the example where your spouse improved the house, your spouse contributed to the home improvements.
The house appreciated in value since the time of the marriage, which can make the increased value subject to division by the court.
To prevent this from happening, make sure to keep your separate property really separate. Seek legal assistance if you're not sure how to do this.
Assets that increase in value due to circumstances beyond your control are passive assets.
This usually happens when market conditions cause an increase in the value of your house or in your stock portfolio, for example. Passive assets that are separate usually remain your separate property, as does the increase in value.
Consult a divorce lawyer so you know in advance whether the appreciation in value has been active or passive.
by Ronna L. DeLoe, Esq.
Ronna L. DeLoe is a freelance writer and a published author who has written hundreds of legal articles. She does...
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