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Marital vs Separate Property

There are two distinctions with respect to property and property division in divorce proceedings. The distinction involves which type of property the property constitutes for purposes of division.

Marital Property

Marital property is defined as any property that is acquired during the marriage or accumulated by either party during the marriage. Many courts also commonly define marital property as property of value of that arose out of the marital relationship. Property may also be defined as marital if the property was separate property prior to marriage and thereafter commingled with marital assets during marriage. Additionally, any property that is acquired after the commencement of divorce proceedings may also constitute marital property if the source of the funds can be traced to marital assets.

If the asset in question is in the name of one party but was acquired during the parties' marriage, the asset is considered joint property and therefore constitutes a marital asset. For example, if the husband buys a vehicle during the course of his marriage and the vehicle is in his name, the vehicle is a marital asset and is subject to equitable division.

Separate Property

Separate property is defined as property that one spouse acquired prior to marriage. Separate property is not subject to division with the other spouse. In some states separate property includes:

  • Inheritances.
  • Income from separate property.
  • Gifts made to the spouse.
  • Personal injury compensation.

Separate property becomes marital property when the separate property is sold or transferred, when it appreciates in value, or when the separate property is commingled with marital property.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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