Spouse's Rights to Property Owned by the Other Spouse Prior to the Marriage

By Larissa Bodniowycz, J.D.

Spouse's Rights to Property Owned by the Other Spouse Prior to the Marriage

By Larissa Bodniowycz, J.D.

During a divorce, spouses must divide all of their property. It is virtually inevitable that, at some point during the division process, an argument arises over one or more assets that one spouse owned individually before the marriage such as a piece of furniture or even a rental unit.

Sad couple looking away from each other

It is easy to think that the spouse who owned something before marriage gets it, but it is not that simple. State laws vary, but the following is how courts generally make the decision about who gets title to such assets.

Separate Property

Courts divide property into two broad categories: separate and marital. Separate assets belong to one of the spouses exclusively. Each spouse gets to keep whatever falls into this category during a divorce. Marital property belongs to both of the spouses jointly and must be divided between them during a divorce.

At the start of a marriage, everything that each spouse owns individually is their own. Over the course of the marriage, that could change, or transmute, into marital property because of how it is treated.


The most common ways that this could occur are through commingling, appreciation, and giving gifts.


Commingling occurs when nonmarital and marital property are mixed, such as combining funds into a joint bank account. When this happens, it usually becomes a marital asset.


If an asset such as a home or piece of jewelry increases in value during the marriage, the increase in value, and sometimes the whole asset, may be considered marital property. It is more likely to be considered as such if the appreciation was the result of work of the spouse that did not own the property or from marital funds put towards improving the asset. For example, if funds are used from a joint account to pay for improvements on one spouse's separate rental unit, the appreciation will probably be considered a marital asset.


During the marriage, one spouse may gift their separate property to the marriage. A common example is gifting a home previously owned by one spouse to the marriage, even though the term gift is not usually used. If a gift is made, it is advisable to change title to reflect the gift, otherwise, gifts can be hard to prove.

Preventing Inadvertent Conversion

To ensure that inadvertent conversion doesn't occur, couples can enter into prenuptial agreements that clearly delineate what property will be considered separate in the event of a divorce. If a couple is already married, they can enter into a postnuptial agreement covering the same issues.

The second best option is to keep separate assets completely separated from marital assets but this is hard to do because even using marital funds to pay for something related to a separate asset could transmute it.

Although it is a difficult topic to broach, it is usually best to discuss what will happen to assets before there is a pending divorce. Once a divorce is pending, emotions can cloud judgment and fights over what each spouse brought into the marriage become more likely.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.