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Separate and Marital Property: Who Owns What?

Home Family Law Separate and Marital Property: Who Owns What?


Marital Property

When you get married, you agree to share more than your feelings and the bathroom — you also share property with your spouse. But what property do you share and what remains your own?

Property Classification

In a marriage there are two types of property: marital and separate property.

Marital Property

Generally, marital property is everything that either of you earned or acquired during your marriage. For example, money you earned at work, put in a joint checking account, and used to pay household bills is marital property. So is the car you bought and made payments on with money from that account.

Separate Property

Separate property belongs only to one spouse. Each state define separate differently, but the same general rules apply. The most common forms of separate property are:

  • Property one spouse owned before the marriage
  • Gifts received by one spouse before or during the marriage
  • Property acquired during the marriage in one spouse’s name and never used for the benefit of the other spouse or the marriage
  • Inheritances received before or during the marriage
  • Property that the spouses agree in writing is separate, as long as the writing meets your state’s standards for that type of agreement, or a post-nuptial agreement.
  • Property acquired by one spouse using separate property assets with the intention of keeping it separate, and
  • Certain personal injury awards (in general, the portion of the award that repays you for lost earnings is marital property, while any award for pain and suffering is separate).

These rules apply no matter whose name is on the title document to a particular piece of property. For example, a married woman in a community property state may own a car in only her name — but legally, her husband may own a half-interest. Here are some other examples:

Property Classification Why
A computer your spouse inherited during marriage Your spouse’s separate property Property inherited by one spouse alone is separate property
A car you owned before marriage Your separate property Property owned by one spouse before marriage is separate property
A boat, owned and registered in your name, which you bought during your marriage with your income Marital property Marital income was used to purchase the boat
A family home, which has both names on the deed, and was bought with your earnings Marital property It was bought with marital income, or money earned during your marriage, and is owned as “husband and wife”
A camera you received as a gift Your separate property Gifts made to one spouse are that spouse’s separate property
A checking account owned by you and your spouse, into which you put a $5,000 inheritance 20 years ago Marital property The $5,000 (which was your separate property) has become so mixed with community property funds that it has become marital property

Keep in mind that you can change the terms of your marital property ownership before your marriage begins with a written agreement (often called a prenuptial agreement).


GCW Lawyers Can Help

Navigating the waters between separate and marital property can be confusing. Dividing up assets is never easy but the experienced family law attorneys at GCW can help simplify the process. Contact us today for a free consultation.

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