How separate property can become marital property

Property division is usually a hotly contested issue in most divorce proceedings. Deciding who gets what is never easy, especially if the separating couple cannot agree on how to go about everything.

Usually, the assets and property owned by the couple (marital assets) are what’s divided between them. However, there is a thin line between marital and separate property.

Marital vs separate property

Separate property belongs to you as an individual, and your spouse has no stake in what you own as an individual. For instance, assets you owned before the marriage, an inheritance or a gift are usually considered separate property.

On the other hand, marital assets generally include everything you earned, purchased or acquired during the course of the marriage (from when you legally became spouses). Examples of marital assets include your income, pension, stocks, the family car and house, among others.

When personal assets become part of the marital estate

There are instances where your personal property becomes part of the marital estate. This can happen when you commingle personal assets and make them available for use by your spouse, thereby losing their identity.

A common way this can happen is when you put personal cash in a jointly held bank account which your spouse can access, deposit and draw from. It will no longer be separate property since it is impossible to distinguish the portion that’s separate from the marital property after merging. Assets can also switch sides when you retitle them and list your spouse as a joint owner. The jointly owned assets will then be considered part of the marital estate.

Protecting your interests in a divorce

A valid prenuptial or postnuptial agreement can save you a lot of trouble when it comes to discerning separate property from marital assets. 

In the absence of either, it is advisable to learn more about property division laws and the available options in ensuring you do not lose out in the end by giving up too much.