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Are assets split during a separation considered separate property?

August 22, 2016 Our Blog

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.


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.

Separate property includes:

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.

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.

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.

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.



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