What is Separate/Nonmarital Property?

Unlike marital property, which is subject to equitable division, separate or "nonmarital" property is generally not divided in a divorce.

Nonmarital property is property that was acquired before the marriage by any means or property that was acquired during the marriage by gift from a third party (that is, someone other than the other spouse) or by inheritance or by bequest in a will.

Property that is acquired during the marriage from funds obtained from the sale, exchange, or use of separate property shall remain separate property of the person who contributed the funds. If any separate or nonmarital property increased in value during the marriage solely by market forces (such as the growth of a stock) and not as a result of the efforts of either party or both parties, then this increase or appreciation would also be considered separate or nonmarital property. However, if separate or nonmarital property increased in value as a result of the efforts of either or both parties during the marriage (such as time and effort spent buying and selling various stocks), then all or a portion of the increase would be considered marital property.

The fact that the property is titled in the name of one party or in the name of both parties is not, in and of itself, the determining factor of whether property is separate or marital. For example, if the parties purchase a residence during the marriage with solely marital funds, but that property is titled only in one party’s name, the residence would be considered is marital property. Gifts between a husband and a wife are generally considered of marital property.

A growing issue we see is when property that would otherwise be considered separate property is put into the parties’ joint names or commingled with marital property. Such circumstances can be complex and factors surrounding the parties’ intent must be examined to determine whether the property is separate or marital.

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