During a divorce, one of the things that can take the longest to complete
is property division, particularly with
high-net-worth divorces or marriages that lasted for many years. However, one way the law has
made it faster to divide assets is to separate them into two categories—separate
property and marital property.
During a marriage, couples will often share everything, from finances to
property to cars. A recently married couple, for example, might buy a
house in which to create a life together. All of these shared assets are
marital property. This is the property that is divided in the divorce, if not equally then
equitably. These include assets earned by either spouse during the course
of the marriage and include savings and retirement accounts.
Separate property, on the other hand, includes any property or asset earned or obtained
before the marriage, after the divorce is filed, and received through
gift or inheritance at any time. For example, if a relative dies and leaves
one spouse $10,000 in the will, the money is considered separate property
and will not be up for discussion during
asset division. Likewise, any property bought with separate funds are considered separate
property, even if they were purchased during the course of the marriage.
In some cases, separate property can unintentionally become marital property
if it is used for the benefit of both spouses. Using the example above,
if the spouse who received the inheritance deposited it into a joint account,
the money then became marital, as it was integrated into shared funds.
This is called “commingling”, and can have the effect of losing
its character as separate property.
What this means is that even if you expected to keep certain assets in
the divorce, you may actually have to relinquish half of their value to
your spouse during the course of the separation. If there are particular
assets that you would like to keep, you can work with your spouse through
negotiation or mediation. The law tries to make the division of property
equitable. For example, if you have a strong sentimental attachment to
the home that you and your partner shared, you may be able to keep it
by offering your spouse the value of half of the equity—essentially
“buying them out.” Likewise, you could negotiate a similar
deal if you and your spouse shared a business.
If you have questions about whether or not an asset is considered separate
or marital, consider talking to our
experienced Birmingham divorce attorney.
Andrea Badalucco has more than a decade of courtroom experience to bring to your case.
During her career, she has dedicated her time to helping people navigate
the complex arena of
family law. Let her offer compassionate and dedicated representation. Contact us
at (248) 467-8208 or fill out our online form to schedule a case consultation
with us today. We are available after hours and on weekends.