Fighting a Claim of Separate Property

The end of a marriage signals the beginning of what can be a long and complicated legal proceeding.  At the heart of many of these cases is that of division of assets and debts.  In New Jersey, marital property and debts are subject to an equitable distribution at the conclusion of the divorce.  Separate property, by contrast, is not subject to division, and belongs solely to one spouse.  Separate property comes in many different forms.  The most common type of separate property comes in the form of property acquired before the marriage.  Usually, property acquired during the marriage is marital property, but there are exceptions.  Gifts received from a person outside the marriage made to just one of the spouses are marital property, as are a portion, or in some cases the entirety, of funds received as a result of a personal injury law suit, or from a will.  There are ways, however, to fight your spouse’s claim that a particular asset is separate property. 

If your spouse is claiming that an asset is separate property because the asset was acquired before the marriage occurred, you may be able to fight the claim it is separate property by demonstrating that the asset has been used as a marital asset and you have contributed to it substantially.  For example, if your spouse owned a house before the marriage, and the two of you lived in the house during the marriage, you helped to pay the mortgage and taxes, as well as participated in home improvement projects, you may have an argument that the house or at least the appreciation in value that occurred during the marriage is a marital asset.

If the asset was acquired during the marriage as a gift or from a will, you may be able to fight the claim it is separate property by demonstrating the asset was commingled.  Commingling occurs when a separate asset is mixed together with a marital asset.  For example, if your spouse inherits a sum of money during the marriage, that sum would typically be separate property.  However, if your spouse then deposits that sum into a joint account and utilized the funds for marital expenses, there is a good argument that it has become marital property.  Accordingly, you may be able to fight a claim of separate property by showing the assets were commingled.

If you are trying to understand the rules of property division in divorce, you need an experienced attorney to help you.   at (732) 529-6937 for an appointment to talk about your assets, rights, and responsibilities.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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