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What is separate property?

If you are getting divorced, one of your main concerns can be how you will divide your physical assets and property. Often, this is one of the most contentious steps in a divorce, so it is wise to be prepared and understand how the process works.

One of the most important things to know is that Michigan is an equitable distribution state, which means that the division of assets should reflect what is fair or equitable. It is also crucial to understand that there are two types of property: marital and separate. In this post, we will look at what separate property is and what happens to it during a divorce.

What is separate property?

While marital property is property that a couple accumulates during a marriage, separate property belongs to just one person. The most common examples of separate property include: 

  • Property owned by one person prior to getting married
  • Individual inheritances
  • Gifts
  • Assets collected or accumulated while cohabitating or after separation

What happens to separate property in a divorce?

Unlike marital property, which is eligible for division, separate property typically stays with the person who owns it.

However, there are exceptions. Michigan courts may distribute separate property if the non-owner spouse contributed to the acquisition or improvement of the asset, or if the non-owner spouse would be unable to support him or herself with a settlement that does not include the separate property. 

Other complications can arise if separate property becomes marital property or if an asset contains both separate and marital elements. 

How to protect separate property

To protect separate property from division, you might create a prenuptial or postnuptial agreement that identifies the separate property and dictates what will happen to it in the event of a divorce. You can also work with your attorney to protect it during the divorce process through negotiations and challenging claims that it is marital property.

Dividing property can be an emotional and combative process. Issues related to shielding separate property from division often only add to the complexities of the situation. However, when you understand your rights and have the support of an experience legal representative, you can work to pursue the settlement you deserve.

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Eisenberg & Spilman, PLLC
600 South Adams Road Suite 100
Birmingham, MI 48009

Phone: 248-358-8880
Birmingham Family Law Office

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