• Tracy Duell-Cazes

Marital or Separate Property



When couples get married, both parties are usually excited about the prospect of sharing their life together, and this will mean moving from individual residences to one shared home, sending our couples’ holiday cards, and opening joint bank accounts. It’s only when the marriage nears the end that it occurs to the divorcing couple that they will need to sort out their finances between what is separate and what is marital property. An experienced family law attorney can help with that, but here is a brief overview of the difference between the two and when one separate property can become marital property.


Separate property.


Anything that belongs to a person as an individual or property that was owned or claimed before the marriage is considered separate property. Additionally, anything bequeathed to one party belongs to that party only, even if inherited during the marriage. If you are given a gift that names you specifically, whether monetary or otherwise, that is also considered personal property. The money or items received in exchange will also be considered separate property if you decide to trade or sell a separate property.


Marital Property.


Anything a couple earned or acquired while married. This includes everything you bought, from property to vehicles, clothing, bank accounts, stocks, and bonds. In these instances, the title to the property isn’t always relevant. For example, if one spouse opens a bank account using only their name, the money in that account can still be considered marital property.


Separate Property Becomes Marital Property.


There are circumstances that separate property becomes marital. This usually happens when one party commingles their separate property with the marital property. For example, a wife inherits a sizable sum from a relative and decides to use that money, with her husband, to purchase a home in both of their names. He may not have contributed that much to the purchase of the home, but it now becomes marital property, and the values must be considered that division of assets occurs during divorce proceedings. Similarly, if one spouse cashes in stock or CD and deposits that money into a joint account or CD with the other spouse, that money is now considered marital property.


There are also examples when a portion of separate property becomes marital property. Usually, it’s when one spouse contributes to the value of the other spouse’s separate property. An example would be if a husband came into the marriage with a piece of family land. Still, the married couple contributes time and funds to maintain the land or even build on it, the total value of the land wouldn’t generally be converted to marital property. Still, a portion might be, and the wife may be entitled to some of the increased value of the property.


Ultimately, many of the trickier aspects of property allocation in a divorce will be decided by a judge, which is why it is prudent to hire an experienced attorney to look out for your interests. This way, you can ensure that what is yours remains only yours, and everything else is divided.

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