Divorce is an emotional and financial major life transition with one of the biggest concerns being who gets what when everything in your marital is divided. If you brought assets into the marriage, received an inheritance, or were gifted property, you may assume those remain yours. However, that’s not always the case—especially if those assets have been co-mingled with marital property.
So, how do you protect what’s rightfully yours? Understanding how sole and separate property is treated in a divorce is the first step to ensuring it stays that way.
What Is Sole and Separate Property?
In divorce, assets and debts are typically classified as either marital property (which is divided) or sole and separate property (which remains with the original owner).
Sole and separate property generally includes:
- Assets or debts acquired before marriage
- Gifts or inheritances received by one spouse individually
- Property protected by a prenuptial or postnuptial agreement
- Compensation from a personal injury settlement, in some cases
While these assets may start as sole and separate, they can lose that status if they become co-mingled with marital finances.
How Assets Become Co-Mingled
Many people unintentionally co-mingle their separate property, making it difficult to prove ownership in divorce. Some common ways this happens include:
- Depositing inheritance money into a joint bank account
- Paying the mortgage or household bills with both separate and marital funds
- Re-titling property (such as adding a spouse’s name to the deed of a home)
- Using joint funds to improve separate assets, such as renovating a home owned before marriage
Once an asset is co-mingled, proving that it should remain separate can be a challenging legal battle.
Steps to Keep Sole and Separate Property Protected
Before Marriage: Set Clear Boundaries
One of the best ways to protect separate property is through a prenuptial agreement. A prenup clearly defines what remains separate, reducing future disputes. If a prenuptial agreement wasn’t signed, keeping detailed records of assets—including statements, receipts, and ownership documents—can help establish ownership later. Keep in mind that in a long marriage, your prenup must be updated as assets change and your estate grows.
During Marriage: Avoid Mixing Separate and Marital Finances
To maintain separate property status, it’s important to:
- Keep inheritances or personal gifts in separate accounts
- Avoid using marital funds to improve, pay off, or refinance separate property
- Maintain clear ownership titles and avoid adding a spouse’s name to deeds or accounts
A postnuptial agreement may also help define and protect sole and separate assets during marriage. However, courts often scrutinize post-nups more closely than prenups, requiring clear and convincing evidence of fairness, and real exchange of value (“consideration”) and legal representation for both spouses.
During Divorce: Prove What’s Yours
If divorce is underway, it’s crucial to gather documentation that proves which assets were yours before marriage. Bank statements, property records, and financial documents showing an asset’s history can be used to support your claim.
In complex cases—especially when significant assets have been co-mingled—you may need the expert services of a forensic accountant to trace the origin of funds and establish ownership.
Finally, the divorce decree should clearly designate which assets remain sole and separate to prevent future disputes. Without this designation, separate property could be mistakenly classified as marital and subject to division.
What If Your Separate Property Is Disputed?
In many divorces, one spouse may argue that an asset—originally separate—should be treated as marital property due to co-mingling. Courts consider factors like:
- Whether joint funds were used to maintain or improve the asset
- If both spouses had equal access or control over the asset
- Whether a spouse’s name was added to the title
If an asset is deemed to have been co-mingled beyond separation, it may be considered joint property, which could mean a 50/50 split.
Why Legal Guidance Is Essential
Protecting separate property in divorce isn’t just about intent—it’s about proving ownership with strong evidence. Even with the best record-keeping, disputes can arise when emotions run high. That’s why working with an experienced family law attorney is critical.
At McMurdie Law & Mediation, we help clients preserve their rightful assets and ensure that sole and separate property remains protected and separate. Whether you’re considering a prenuptial agreement, facing a divorce, or concerned about co-mingled assets, we provide the legal expertise you need.
Schedule a Consultation Today
If you’re worried about how your property will be divided, let’s talk. Schedule a consultation with McMurdie Law & Mediation today to discuss your best options for keeping what’s yours.