Separate Versus Marital Property: What’s The Difference

One of the most contentious aspects of any divorce is the division of assets. Deciding who gets what often leads to some very unpleasant arguments and legal hand-wringing as couples fight over anything and everything. Often this is because couples don’t understand separate versus marital property differences.

Because California is a state that uses community property laws rather than the more common equitable distribution system, it means the division of property in a divorce usually results in a 50/50 split of all marital assets. Therefore, knowing between separate versus marital property during a divorce is critical.
 

Separate Property

Separate property includes assets or real property owned by one spouse before the marriage or received during the marriage through inheritance, gift, or devise.

Put simply, if one spouse bought a car and a vacation home a year before they got married, that car and home are separate property and are excluded from the pool of marital assets in a divorce.
 

Marital Property

Marital property includes assets or real property purchased during the marriage. Because many couples, after getting married, also merge their finances and have shared bank accounts, anything purchased with those funds are considered marital assets.

While the laws in some states have begun to change, it’s important to know that family pets, if purchased during the marriage, are legally counted as marital property and subject to the division of assets process.

Can Separate Property Become Marital Property?

It is in fact possible for separate property purchased before the marriage to become marital property. This is due to what’s called “commingling”, which means to mix assets, and happens when a couple combines separate and marital property and uses them in such a way that the property loses its separate character.

For example, if one spouse purchased a classic car prior to the marriage, but then uses shared funds to restore the car, make repairs, and pay for insurance–a judge may then consider that car marital property. Especially if both spouses drive it in fairly equal amounts.

When considering separate versus marital property in a divorce, it’s important for each spouse to consider what assets they thought were separate might have become commingled during the marriage.
 

Working With A Divorce Lawyer

Arguing over property is usually the most costly and difficult aspects of divorce. Tracing assets can be an arduous process, particularly if the marriage lasted for a long time.

In some cases a prenuptial or postnuptial agreement may protect a spouse with separate versus marital property concerns, but that’s not always the case. If you’re worried about losing your separate property in a divorce, seek out a local family law attorney for advice before it’s too late.