What can’t your spouse get in a divorce?

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State-by-state there are different approaches to deciding what property can and what can’t a spouse get as part of the divorce.

Separate property.

In most states, the process is to first identify what property is marital property and what property is separate. 

Marital property is property acquired during the marriage, except for all property that was received by one spouse as a gift or inheritance, so long as the gift or inheritance was not commingled with marital property (such as if it was deposited into a joint bank account).  

A Prenup can change the answer to what can’t a spouse get as part of the divorce.

Property may not be marital property if it is the subject of a valid prenuptial agreement or was acquired after the spouses entered into a valid separation agreement. 

Gray areas may exist in some circumstances; for example, if property is acquired before marriage and later mortgaged after marriage.  Or, how the income from separate property should be allocated.  Pensions and professional education may also be marital property in some situations.

Many states take a completely different approach.

In Alabama, Alaska, Connecticut, Hawaii, Indiana, Kansas, Massachusetts, Montana, Nebraska, New Hampshire, Oregon, Rhode Island, Tennessee, Vermont and Wyoming the issue of whether property is marital or not is largely irrelevant because, in these states, the court can divide all property regardless of how it was acquired. 

In a few states (Georgia, Iowa, Utah and West Virginia) the answer to what property can or can’t spouse get in divorce is left almost entirely to the judge.

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