What Assets Are Protected From Divorce Settlements?

When you’re negotiating the division of assets in your Spartanburg divorce, you may wonder what you’re entitled to keep and what’s going to be split between you and your spouse. There are some assets that aren’t subject to division, and it’s important to know what you own separately before your spouse tries to lay claim to it.

Divorce is complicated, and it’s important to have legal representation you trust. Call Nowell Law Firm at 864-469-2481 to discuss your next steps with our team.

Marital vs. Separate Property

Understanding the distinction between marital and separate property is important. While marital property is divvied up during a divorce, both parties get to keep their separate property.

Marital property usually refers to anything earned during the course of a marriage. Income, real estate, retirement accounts, vehicles, and jewelry acquired while married are all examples of marital property. Of course, something being marital property doesn’t mean that it has to be split. 

It is common for couples to negotiate; one wants to keep the marital home, so they give up a greater share of the retirement accounts in exchange for it. The other wants the entirety of the business they built together, so they give up all retirement accounts and the family home. However, you should expect to lose some marital assets.

Separate assets are handled differently. Assets owned prior to marriage generally remain the sole property of the spouse who owned them previously. There is an exception, though—if separate property is commingled or used for the benefit of the marriage, it may be considered marital property by the courts.

Assets That May Be Protected in Divorce

So which specific assets are protected during divorce? This list is not comprehensive but does include some of the most common examples:

• Premarital assets:If you have property you earned prior to the marriage, you may keep all of it during your divorce. A lot depends on how you handled the property during the marriage. If you mixed it with marital assets, allowed your spouse to contribute to its upkeep or value, or used it to benefit your marriage, it may have become marital property. Be prepared to bring records showing that you kept it separate from marital assets.

• Items listed in the prenuptial agreement: A prenuptial agreement can specify which assets will be divided during a divorce and which assets are owned solely by one party or the other. A prenuptial agreement must be appropriately drafted to be legally enforceable, so it’s important to work with an attorney if you plan on using one.

• Gifts to one spouse: In some cases, property obtained during a marriage can be kept separate after divorce. This is often the case when a gift is given solely to one spouse for their exclusive use. This can be difficult to prove, though, as your spouse may claim that the item is marital property because it was acquired during the marriage. Without proof that it was intended for only you to use, you may fail to keep the asset.

• Inherited assets: Inheritances are generally considered separate property regardless of when they are received. It’s easy, though, for inherited assets to become commingled, so take steps early on to keep these assets separate.

How to Safeguard Your Assets

Before you get to the point of divorce—and even during a divorce—there are things you can do to protect the assets you want to keep separate. The easiest is a prenuptial or postnuptial agreement. Both sides should have attorneys look it over to ensure that the document is fair and legally enforceable.

As noted above, keeping separate assets removed from marital assets is key. To support this, keep thorough records about how assets are obtained, maintained, and used. If you can show that you kept assets separate from marital assets, funded their upkeep alone, and did not use them to benefit the marriage, that can help you during negotiations. When it comes to funds, keeping them in separate accounts that are not used for marital expenses is one option.

Plan for Your Divorce with Nowell Law Firm

Take action now to protect your assets and fight for what you want in your divorce. Set up a consultation with the team of Spartanburg divorce attorneys at Nowell Law Firm. Get started now by filling out our online contact form or calling us at 864-469-2481.