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Commingling: How Separate Property Becomes Marital Property

A property interest brought into a marriage by one of the marital partners is non-marital asset and is not subject to equitable division. This category of property is referred to as separate property in the state of Georgia. This means that in the event of divorce the other spouse will not have a claim to it. The law is clear on this concept in that all assets will be classified as either marital or separate property and courts will look to the source of the asset for this determination. However, separate property can become marital property if those assets are commingled.

Commingling of assets refers to a spouse’s separate property being combined or mixed with the couple’s marital property. Some common examples of scenarios where property can become commingled are:

  • Using separate property, such as pre-martial savings or an inheritance, to purchase or make improvements to a residence.
  • Using separate property to fund a joint retirement, checking or savings account.
  • Other forms of investments that are comprised of contributions from before the marriage and after the marriage.
  • Combining resources (separate property) to make large purchases such as a home or a car.
  • Using marital assets to pay for mortgage payments or improvements to a residence owned prior to the marriage.

Although the court will rely on the source of the funds to determine whether an asset is marital or separate property, the issue can be complicated when assets are commingled. Georgia uses equitable division to divide property amongst divorcing parties. This means that the court will take into account factors such as how long the parties were married, their respective needs and the financial contribution made during the marriage. In other words, if one spouse owns a residence prior to the marriage and during the marriage both parties pay for the mortgage, use their income to maintain the residence and make improvements to that residence it may become marital property. Under this scenario it would not be equitable to allow a party to make significant contributions to an asset only to walk completely away from their investment as a result of a divorce. There is no set rule or formula for determining what set of facts would create the highest probability that a separate property classification would be treated as marital property. For instance, in the scenario above involving the spouse with a pre-marital residence, the court will treat the couple married for a year different from the couple married for ten years.

The classification of property during a pending divorce can be the source of extensive litigation. Ultimately, these issues are decided by judges who have their own experiences and view certain facts differently. It is critical to your case that you consult with an experienced family law and divorce attorney to guide you through this process. Attorneys at the Faucette Law Firm, LLC will assist you with gathering all of the necessary information to present your case. We represent clients in all family law and divorce-related matters such as contested and uncontested divorce, child support, child custody, alimony, legitimations and modifications. Contact our office today for a consultation.

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