Introduction to Property Rights in Marriage

Most people get married when they already own some property, savings, and investments. After marriage, the law classifies them as separate properties. During marriage, you will most likely acquire more money and property. In many states, the property acquired during marriage is categorized as marital property or marital estate. Some people agree to exclude some of their property from marital estate by signing a prenuptial or postnuptial agreement. In the absence of such a document, it is presumed that all properties that are acquired during marriage are marital property.

What Constitutes Marital Property

Marital property can also include:

• Personal property including furniture, cars, airplanes, boats, and any artwork that you and your spouse bought when you were married.
• Bank accounts, cash, retirement accounts, and securities that you obtained during marriage.
• Real property that both of you purchased during marriage. However, this is not inclusive of any contributions by either of you from separate property, for example, paying part or the full down payment using separate property funds.
• Advanced professional degrees and all permits that you acquired to engage in a specialized business during marriage.

Understanding Separate Property Classifications

Separate property includes:

• All personal properties that you owned before marriage
• Property that you might have acquired through exchanging your separate property while you are married.
• Real property that you purchased before you got married.
• The increase in the value of your separate property. However, in case the value increases due to a contribution from your partner, then the increment will be shared in case of a divorce.
• Any property that you received as an inheritance or as a gift from another person other than your spouse.
• Property that you agreed upon in a written agreement to be listed as separate property.
• Any compensation that you receive for personal injuries that you might have sustained.

Property Division During Divorce Proceedings

In case you or your spouse have filed for divorce or a legal separation, you can both agree on the division of separate and marital property. However, if you cannot agree, you will have to face trial in a court of law, and the court will decide on which property should be categorized as either separate or marital property. The court also takes over the decision process of deciding what would be equitable and fair to both of you. However, it is not always equal depending on the circumstances.

The Division Process Followed by the Court

In many states, courts follow a four-step process that determines how property is divided among different individuals.

Identification of all assets: The first step is to identify all the properties regardless of whether they are separate or marital. Therefore, you will have to come up with a list of all the assets and also debts that belong to either or both of you.

Classifying the assets: The second step is the classification of the identified property. The court decides on which properties will be classified as separate or marital. Many people presume that any property that they acquire during marriage is considered as marital property which is not always the case.

Valuation process: The third step is the valuation of the property. The court attaches the fairest market value of marital property during the date of separation and then the net value of the property is determined after the taxes are taken into consideration.

Distribution of the assets: The final step is the distribution of the assets equally. Most people also presume that marital property is divided equally after divorce. However, such presumptions can be refuted if there are reasons that warrant for an unequal division of the property.

The Critical Importance of the Date of Separation

The Date of Separation

Courts in different states determine the date of separation as the date when both spouses agree to terminate their marriage. In other states, this is the date when a spouse leaves the marital home. The date of separation is a very important date since it marks the end of property being categorized as marital property. Unfortunately, this date is often open to debate. The court will require you to have some evidence of a final breakdown, for example, the date when you or your spouse left the matrimonial home.

Health Insurance During Separation and Divorce

Can his insurance company drop me if we are separated?

One major concern when going through a separation is whether your spouse can drop you from their health insurance coverage during your separation. It’s most likely that your spouse will not be able to drop you from their policy until after the divorce is finalized, but this isn’t always the case. There are multiple factors that can come into play in this situation.

The Health Insurance Policy and Provider

The first factor in this situation is the health insurance policy your spouse has and the provider. Every provider has its own rules regarding how it handles separations. Even though it’s your spouse who is technically paying for the policy and therefore the policyholder, you are both listed on the plan, and the provider may not be able to take you off without your consent or proof that you and your spouse are divorced. In that case, your spouse wouldn’t be able to drop you and would instead need to wait for the divorce process to finish.

However, there are also providers who look at separation the same way as a divorce, which means if your spouse tells their provider that you two are separated, they can get you removed from the plan. If you want to avoid this, you would need to go to the court to prevent your spouse from dropping you.

The Court Handling Your Divorce

The court that is handling your divorce also plays a role in whether you get to keep your health insurance during the separation process. If the court decides that you should keep your health insurance plan, it can put in temporary orders that require your spouse to keep you on their policy until you two are divorced.

If you get this temporary order and your spouse has you dropped from their plan anyway, you can notify the court that your spouse violated temporary orders. The court will then tell your spouse to put you back on the insurance policy immediately. If you had any costs due to being removed from the policy, such as out-of-pocket medical expenses you had to pay, then your spouse will also need to reimburse you for those.

Whether the court will grant a temporary order like this depends on the law in your state. Many states, including New York, have what’s called a Doctrine of Necessaries, which means spouses are responsible for each other’s medical bills. Because of this, courts in these states will often require that a spouse doesn’t drop their partner from their policy during a separation.

What Happens After the Divorce?

Your health insurance coverage after your divorce is finalized will depend on what the court rules. If the court requires your spouse to pay for your health insurance, your spouse may have the option of keeping you on their plan or paying a certain amount per month as alimony for your health insurance premiums on a new plan. In that case, that amount would be added to any existing alimony that your spouse needs to pay.

It’s more likely that your spouse pays you a certain amount per month and you must find your own health insurance plan, because often providers won’t let spouses keep divorced ex-partners on their policies.

Seeking Legal Guidance During Separation

Going through a separation and a divorce can be a difficult time, and you don’t want to lose your health insurance coverage out of nowhere. It’s smart to consult with an experienced divorce lawyer who can guide you through the entire process and let you know what to expect.

Your lawyer will understand the divorce laws in your area, including those regarding health insurance policies. If you have the right to stay on your spouse’s health insurance during the separation, your lawyer will make sure that you’re kept on and can fight for your spousal support once the divorce is finalized.

Understanding Asset Classification After Separation

When most couples get into the relationship, they come with assets that are considered separate from the marriage. As the marriage progresses, many people will sell separate homes and buy one together. This becomes a marital asset. Others won’t sell their property, and they’ll both agree that it’s excluded from being jointly owned. They might even sign a prenuptial or postnuptial agreement to that effect.

When the couple has separated but there’s been no divorce, it can lead to some confusion about whether the assets are considered marital or not.

What is an Asset?

An asset is property, which has value, and is owned by a person or business. It’s basically a thing of value that can be turned into cash. This would include jewelry, property, vehicles and electronics. An asset can be marital property or separate property, but it can be difficult to determine that separation without an agreement between the two or a court order during a divorce.

Detailed Classification of Property Types

Separate Properties

This is property that was purchased before the marriage. If that property was sold and the proceeds purchased other property, that is considered separate property even while married. The increase in value of the property is considered separate too. That is true only if the spouse did not contribute to the value increase.

A gift or inheritance received from a third party would be separate property from the marriage. If the gift was from the spouse’s family, it would still be considered separate property.

Compensation from a personal injury, accident or worker’s compensation would be considered separate. This doesn’t have to be shared with a spouse after the marriage is dissolved.

Marital Property

Marital property includes all valuable items acquired during the marriage regardless of who paid for them. This would include property and vehicles, but also, furniture, artwork and boats. Cash, bank accounts and bonds or securities accrued during the marriage would be joint property.

Property purchased aside from the marital home would be considered marital property unless it was purchased using funds from the sale of a property owned before the marriage.

This is all considered marital property unless there was a prenuptial or postnuptial signed by both parties expressly separating the assets.

Property Division Summary Table

Separation of Assets in a Divorce

Assets before and during the marriage will have to be split in a way that the laws allow in the couple’s state. If they can’t agree on the division of property, the court will have to step in and make those determinations based on a few factors.

First, they’ll identify all the assets. That includes every piece of property, cash or belongings of value. It’ll also include identification of the debts.

Next, the court will classify whether the assets are marital or separate. Not all property acquired during the marriage is jointly owned.

The court will put a value on the property based on the market value with taxes taken into account.

Lastly, the court will distribute the assets to the divorced couple.

Items, Belongings and Property After Separation

The items that are purchased or acquired after the separation are not considered marital assets. The important part of the process is marking the date of separation. That can be difficult unless they can prove the date a spouse left the home definitively. This date of separation can be hotly contested in a divorce proceeding if there’s been some real assets acquired.

When the couple split and one spouse left the home with property, that property is still considered marital until they’re divided by the court or the couple agrees on the distribution. For example, a couch taken by the husband is still considered marital property and might revert back to the wife in the divorce decree.

State-Specific Property Laws

Some states are community property and some are common law states. That will dictate the division of the assets before the marriage, but after the separation, those items are considered separate property as long as you can prove the date of the separation. That proof might include a rental agreement on a new apartment or utility bills in the spouse’s name that mark a new address.