In any divorce, there are always questions surrounding property. It’s easy to become confused about what you can keep and what gets divided among the spouses.
Sometimes, people sign martial contracts that rigidly designate all property, keeping this confusion at bay. Generally, however, there are two categories of property in a marriage: separate property and marital property. Another category exists, but this one is far more vague. This is called co-mingled property.
Here is a broad overview of each property type and how it is handled in a divorce.
Defining Separate Property in a Marriage
Separate property, legally, has nothing to do with the marriage. It belongs to one individual alone, and it comes from outside the marriage.
Examples include:
- Property you inherited.
- Property you owned before the marriage.
- A gift you received from someone outside the marriage.
The law is mostly concerned with the origins of your property. In the above examples, you will see that the property is not generated within the marriage. For instance, the law assumes that if your grandmother put your name in her will, that property belongs to you alone.
Because separate property belongs to just one person, there should be no disagreements about ownership in a divorce. Separate property should go to its owner without a challenge.
Defining Marital Property
Marital property is owned by each spouse equally. Generally, it consists of anything either party purchases during the marriage. This includes gifts you bought for one another.
The law assumes that while you are married, you and your spouse are family. Therefore, any assets you acquire go toward the good of that family. Regardless of who paid for the item or whose name is on the title, each spouse has 50% ownership of that item.
Since each spouse has part ownership of all marital assets, this is the property that you divide in a divorce. In the U.S., states generally use one of two models to distribute marital assets.
Some still use the “community property division” model, which is generally considered the older, outdated system. Under this model, the state attempts to give each spouse 50% of the overall marital assets. This value can include physical property, savings, and even debt.
Most states use the “equitable property division” model. This system allows the court to decide which spouse is most deserving of property and gives it to them. For instance, a spouse who primarily uses one of the cars will probably get to keep that car.
To keep marital property, you must convince the court that you are entitled to it. Doing this requires working with your attorney and building a case.
Defining Co-Mingled Property in a Marriage
In a divorce, “co-mingled” isn’t necessarily a well-defined term. Some states and courts don’t use the term directly. Essentially, co-mingled property began as separate property, but circumstances make it harder to define.
For instance, imagine you inherited a vacant plot of land from your uncle. Initially, this property is indisputably separate, belonging to you alone. However, you and your spouse build a house on this property and rent it out to tenants. Now it’s harder to determine whether that land is separate. The house itself and the income you collect from it are marital assets.
Co-mingled property must be “untangled” in a divorce. There are several ways to do this, including:
- Claim Entitlement
Just as you would with marital property, you can work to convince the court that you deserve to keep the property. This will require proving that you were the primary user of or contributor to that property. - Prove that Your Spouse Inhibited the Property
There are several ways to make this claim. One is to show that your spouse’s involvement somehow devalued or inhibited the property. Perhaps they got involved and ruined the property somehow. Another tactic is proving that your spouse actively sabotaged the property.
Our firm is here to help protect your assets in a divorce. For help, call us today at (516) 514-3868 or contact us online.
