Marital property isn’t black and white. Like so many other things in life, many elements factor into how the court determines the ownership of each person’s property. 

Marital Property vs. Separate Property

Marital property refers to assets that the couple earned while they were married. Every state is different, but here are a few examples of what can be considered marital property:

Yes, it’s a long list! 

So if all of that can fall into marital property, what is considered separate property? 

Separate property – just like it sounds – belongs to only one spouse. Again, every state is different, so laws can vary. But there are a few universal rules for what’s considered separate property. 

  1. Property owned before the marriage
  2. Gifts or inheritance received. This could be either before the marriage or during the marriage. 
  3. Any kind of property that was agreed in writing – by both people – to be separate. This is usually done with a prenuptial agreement or postnuptial agreement. 

At a high level, that breaks out the two types of property. Knowing that, you may be wondering if there’s a way that separate property can become a joint asset. 

The short answer is… it depends. 

How Separate Property Can Become Marital Property

Sometimes something that starts as separate property may become marital assets. For example, let’s say before the marriage one of the spouses had a bond that paid dividends regularly. 

If the owner of the bond set up the proceeds to be deposited into a joint account, those dividends are now considered marital property. So even though the source of the income may still be separate property, the dividends would be considered marital property because they went into a joint account. 

In a Divorce, How is Marital Property Divided? 

Let’s say you’re in a situation where the court is dividing up your marital property. In that case, the division is primarily based on your state. 

Most states do something called “equitable distribution.” This is where the division of the marital assets is somewhat complex, as a lot of factors play into it. Here are just a few:

There is more to it than that, so you can see why this gets complicated.

California, like other community property states, operates a bit differently. In those states, everything the couple owned is part of the community. In the case of a divorce, the property is split up evenly among the community. In other words, most of it will get split 50-50. 

That doesn’t necessarily mean every asset gets split 50-50. For example, maybe one spouse needs to stay in the current home due to their child’s particular needs. They may keep the home, but the other spouse gets a larger portion of other assets. 

Conclusion

After reading this article, do you have any other questions on marital property? If so, please give us a call at 714.456.9118 or send us an email at info@voneschlaw.com. We’d love to help you with your divorce any way that we can. 

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