It is possible to get a divorce without dividing certain assets, but only under specific legal conditions. It requires careful planning, clear documentation, and often, legal agreements like a prenuptial or postnuptial contract.
Prenuptial agreements are becoming more common for exactly this reason. According to a 2022 Harris Poll, 15% of U.S. adults have signed a prenup, five times more than in 2010.
Among younger adults, the number is even higher. Nearly 40% of married or engaged people aged 18–34 have one. It’s clear that more people are planning ahead to protect their assets.
At Northwest Family Law, we focus on more than just legal outcomes. We help clients protect what matters and move forward with support from financial and legal professionals who understand the full picture.
Key Takeaways
- You can avoid dividing certain assets in divorce if they qualify as separate property and are clearly documented.
- Prenuptial or postnuptial agreements can protect assets like businesses and inheritances, but they must meet legal standards to be enforceable.
- Even in community property states like Washington, courts can adjust the 50/50 split for fairness based on financial circumstances and contributions.
- Commingling separate assets with marital funds can cause them to lose their protected status during divorce.
How Are Assets Typically Divided in a Divorce?
When couples divorce, assets are not always split down the middle. First, it’s important to know how the law defines your property, specifically, whether it’s marital or separate.
What Is the Difference Between Marital and Separate Property?
Marital property includes assets you and your spouse acquired during the marriage. That could be a house you bought together, joint savings accounts, a 401(k) built up during the marriage, or even furniture purchased with shared income.
Separate property, on the other hand, usually includes:
- Things you owned before getting married
- Gifts or inheritances you received individually
- Assets specifically protected by a prenuptial or postnuptial agreement
- Retirement accounts or investments that were fully funded before the marriage
However, just because something started as separate property doesn’t mean it stays that way. If you mix it with joint finances, say, by adding your spouse to the deed, contributing marital funds to a premarital 401(k), or using shared money to renovate your inherited home, it might lose its “separate” status in court.
What Factors Do Courts Consider When Dividing Property?
Asset division factors are dependent on where you live. Some states aim for a 50/50 split. Others focus on what’s “fair,” which isn’t always equal.
Courts usually look at:
- Length of the marriage
- Each spouse’s income and earning potential
- Whether one person gave up work to raise kids
- Contributions made to acquire or maintain property
- Any debts, like loans or credit cards, tied to the assets
If you’re in a state that uses equitable distribution, the court tries to divide things fairly, not necessarily evenly. In community property states (like Washington), most assets acquired during marriage are split 50/50, unless you have a valid agreement that says otherwise.
What Counts as Separate Business or Inherited Property?
If you owned a business before getting married, there’s a good chance it starts off as separate property. The same goes for an inheritance.
However, whether you keep full ownership depends on what happened during the marriage. Did your spouse help grow the business? Were marital funds used for business expenses? Did you deposit inheritance money into a joint account?
Courts can treat part or even all of your business or inheritance as marital if it became commingled with shared finances. That’s why documentation matters. Clear records, signed agreements, and a clean separation of funds can make a huge difference if you ever end up in court.
Can a Judge Still Divide Assets Against Your Will?
Yes. Even if both spouses agree, a judge can step in and divide assets if the agreement seems unfair or violates state laws.
What Makes an Agreement Legally Enforceable?
To hold up in court, a prenup, postnup, or divorce settlement must be:
- Written and signed by both parties
- Entered voluntarily, without pressure or deception
- Based on full financial disclosure
- Not “unconscionable” (wildly unfair) at the time of signing
If any of these conditions are missing, the judge can reject it.
What Evidence Do I Need to Prove Assets Are Separate?
You’ll need clear documentation. Courts rely on proof, not assumptions.
Keep records like:
- Pre-marriage bank or investment account statements
- Inheritance documents (e.g., wills, trusts)
- Business formation paperwork showing sole ownership
- Proof you didn’t mix (commingle) funds with joint assets
Divorce Laws Compared: California vs. Texas vs. Florida vs. Washington
| State | Property System | Default Asset Division Rule |
| California | Community Property | 50/50 split of all marital assets |
| Texas | Community Property | 50/50 split, but courts may adjust for fairness |
| Florida | Equitable Distribution | The court divides assets fairly, not always equally |
| Washington | Community Property | 50/50 split, with possible adjustments based on equity and needs |
What Makes Washington Unique in Asset Division?
Washington applies a strict community property model, but with some flexibility. While it starts with a 50/50 split of marital assets, courts look at the “just and equitable” standard, meaning they can adjust the split based on fairness, not just equal ownership.
What stands out:
- Washington is a no-fault divorce state, meaning the reason for divorce doesn’t affect asset division.
- Courts consider each spouse’s economic circumstances, including future earning potential.
- Even separate property can be considered in division if needed for fairness (e.g., to prevent one spouse from leaving with nothing).
In short, Washington follows a clear framework, but judges have room to make fair adjustments, particularly when there’s a significant financial imbalance or disputes over high-value property.
Frequently Asked Questions
Q: Will I lose my business if we get divorced?
Not necessarily. If you started the business before marriage, kept finances separate, and didn’t involve your spouse in its operations or growth, it’s likely to be considered separate property. But if marital money or effort helped grow it, a portion could be split.
Q: Does a prenup guarantee I keep my assets?
A valid prenup offers strong protection, but it’s not bulletproof. The court can throw it out if it’s unfair, signed under pressure, or lacks full financial disclosure. Always back it with good records.
Q: Can I keep an inheritance in a divorce?
Yes, if you kept it separate. That means not depositing it into joint accounts or using it for shared purchases. Once it’s mixed with marital assets, it’s harder to claim it as yours.
Q: What if we both agree not to divide anything?
You can submit a written agreement to the court. As long as it’s fair and legal, most judges will approve it, especially in uncontested divorces or mediated settlements.
Q: Do retirement accounts always get divided?
Most of the time, yes, if they were earned during the marriage. But retirement savings from before the marriage, or accounts protected by a prenup, can sometimes stay separate.
Protect What’s Yours, Start with the Right Legal Team
If you’re serious about keeping your separate property and avoiding unnecessary asset division, the right legal strategy makes all the difference. At Northwest Family Law, we help you protect what matters and plan for what’s next, with personalized guidance backed by real experience.
Ready to move forward with clarity and confidence? Contact us here to schedule a consultation.