Kentucky is an “equitable distribution” state, which means that courts attempt to divide the marital assets in divorces as fairly as possible.

If you or your spouse file for divorce, you will want to know what will remain as your separate property and what assets are part of the marital estate to be divided between you and your spouse.

What is separate property?

Non-marital or “separate” property may include assets and liabilities you owned before the marriage date, as long as those assets and liabilities were not commingled with marital assets and liabilities. During your marriage, any property gifted to you alone may also count as separate property — again, as long as the gifted money or assets are not commingled with marital assets.

If you received an inheritance that was not commingled with marital assets, the inheritance may also be counted as separate property and thus not divisible in the divorce. Additionally, a prenuptial agreement may specify that certain items of property should remain separate and not marital.

It is generally up to the spouse claiming separate property to prove that the property is actually separate.

What is marital property?

Marital property generally consists of property acquired by either spouse during the marriage. When dividing marital property, the court may consider a variety of factors, including each spouse’s contribution to acquiring the property. For example, a stay-at-home spouse may have contributed to the acquisition of property by maintaining the household while the other spouse focused on his or her career.

What does “equitable distribution” mean?

A court in an equitable distribution state like Kentucky distributes the marital assets in a fair manner but not necessarily equally. Factors that help a judge decide how to divide the marital estate include the health of each spouse, duration of the marriage, employability after divorce, the income of each spouse and tax consequences of property division.

Even if you have separate property, the judge presiding over your case may decide it is not equitable to return everything that belongs to you. For example, if you own two cars and your ex has primary custody of your minor child, the court may grant your former spouse one of the cars so he or she can properly care for the child.

Since “equitable” does not always mean “equal,” it is important to have strong, effective legal representation to ensure that you get a fair share of marital property.