There are two types of property in a divorce: separate property and marital property. Separate property is acquired by a spouse prior to the marriage or is given as a gift or inheritance. Marital property is acquired by either spouse (whether individually or jointly) during the marriage. This is an important distinction since a spouse keeps his or separate property after divorce while marital property is divided equitably between the parties.
SEPARATE PROPERTY CAN BECOME MARITAL PROPERTY
There are situations where separate property can become marital property, and this is referred to as the commingling of assets. An example of commingling is when a spouse adds the other spouse’s name to a house or car that was purchased prior to the marriage. Another example is when funds from one spouse’s inheritance are placed in a joint bank account.
A spouse may be able to prove that commingled property should be classified as separate property if he/she is able to trace the assets. For example, a spouse may be able to use bank statements to show how much of the money in a joint account came from a separate account that the spouse had prior to the marriage. However, attempting to trace assets, in most cases, usually proves to be futile because of the passage of time and the lack of a clear paper trail. In situations where assets can’t be traced, courts usually determine that the asset is a marital property, which means it is equitably divided between the parties.
Maintaining separate property during a marriage requires careful planning, and the advice of legal counsel in these situations is highly recommended. If you have questions about whether your assets will be considered separate or marital property after a divorce, contact an experienced divorce attorney at The FLFAttorneys at (770) 485-6633.