What is the definition of marital property?

Marital property is the term used during divorce proceedings to describe properties that were acquired after the marriage took place and are shared between both parties. These types of properties are eligible for division under state law.

Community Property States

Community property is the property that is owned jointly by a married couple. There are nine community property states also known 50/50 states:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

If you live in one of the nine community property states, marital property and assets are divided equally (50/50) upon divorce. The value of the assets, debts, belongings, etc., is assessed and distributed between the two parties. In some cases, rather than splitting everything 50/50 the court will divide assets and property based on what is equitable.

Short and Long-Term Marriage

In many states, the length of the marriage can determine what happens to marital property after a divorce. If a marriage was considered to be short-term a judge may decide to restore each party to the way they were before they were married. When ending a short-term marriage the court may order temporary spousal support to a dependent spouse. For example, if a couple ends an 8-year marriage the court may order 4 years of spousal support.

Spousal support is ordered to maintain the status quo of the dependent or lower earning spouse after the marriage has come to an end. If it is long term it is possible, but not guaranteed, that the court may order permanent spousal support.

The definition of short and long-term may also depend on the state. For example, in Wisconsin a short-term marriage is one that lasts 5-7 and a long-term marriage is over 20 years, whereas a short-term marriage in California is under 10 years and a long-term marriage is at least 10 years. To be certain of the details your state divorce laws your best course of action is to consult with an experienced attorney in your area.

Separate Property

Not all property becomes marital property when a marriage becomes legalized. It is possible to keep assets separate. Separate property or non-marital property is the property that was acquired before the marriage. It can also include:

  • third party gifts
  • inheritances and
  • money awarded in personal injury lawsuits

The court does not have the right to divide and distribute this property in a divorce. In the event of a divorce, the party may be required to provide proof that the property truly was theirs before the marriage or that it was gifted or inherited.

Co-mingling

To keep your non-marital property truly separate be careful what you do with it. If you are not careful with your separate property it could become co-mingled and consequently become marital property. Once it is co-mingled, it is subject to division in the event of a divorce. If you receive a cash gift or inheritance and:

  • use the money to pay for marital property
  • pay off a marital debt
  • or you deposit the money into a joint account that is shared by your spouse

The money becomes co-mingled and it becomes marital property. Furthermore, if the value of a piece of non-marital property increases the added value can be divided upon divorce.

Value can increase actively or passively. An example of an active increase in value would be taking steps to renovate a property whereas an example of a passive increase would be a bank account that grows because of interest.

Prenuptial Agreements

A prenuptial agreement is a contract made between two people before they get married. A prenuptial agreement outlines the details of who specific assets will go to in the event of a divorce. Couples will create a prenuptial agreement if they want to avoid taking on their partner’s debt in a divorce. A couple may also create an agreement with the hopes of un-complicating things by agreeing on the division of assets ahead of the marriage.

Ultimately, the goal is to protect the individual property rights of both parties in the event of a divorce.

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Frequently Asked Questions

What is marital property?

Marital property is the property owned by both parties in a divorce. It is usually the property gained during the marriage, but it can include property from before the marriage as well. All property is split during the property division process.

What counts as marital property?

Marital property is any property gained during the marriage. It can also include property from before the marriage that becomes commingled by mutual use. Different states have different rules when it comes to the specifics. You can split your assets using a property division worksheet.

What are considered assets in a marriage?

Assets include anything from physical property to retirement accounts to debts. Assets are anything that has a financial impact on your life or marriage.
Assets are then broken down into marital assets and non-marital assets. Non-marital assets are things that do not get split in the divorce process. That usually includes things like inheritances and gifts.

How does separate property become marital property?

Separate property can become marital property if it is commingled. It is commingled through mutual use. That could be through putting an inheritance in a shared bank account or using your house as the marital home.

What assets cannot be touched in divorce?

Non-marital assets or separate property are assets that cannot be split in a divorce. However, these can become marital assets if they are commingled. Be sure to keep your individual property separate from the marriage if you don’t want to have to split it. Another thing that can sometimes keep property separate is prenuptial or postnuptial agreements.