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What is the difference between marital and separate property?

| Apr 20, 2021 | Property Division

There is an important difference between the different types of property a couple may possess when it comes to the property division process. Only marital property is generally subject to the property division process, unlike separate property which is usually not subject to the property division process, which is why divorcing spouses should know the difference.

Examples of marital property

Several different categories of property may be considered marital property including:

  • Real property the spouses acquired during marriage with some exceptions;
  • Personal property, including cars, boats, furniture and artwork the couple purchased during the marriage;
  • Cash, securities, bank accounts, retirement accounts and pensions acquired during the marriage;
  • Advanced educational degrees, and permits to engage in specialized businesses, acquired during the marriage; and
  • Gifts to one another.

Examples of separate property

Several different categories of property may be considered separate property including:

  • Real property one of the spouses obtained or owned prior to the marriage;
  • Personal property one of the spouses obtained or owned prior to the marriage;
  • Property one of the spouses obtained by inheritance or gift from someone other than the other spouse during the marriage;
  • Compensation one of the spouses received for personal injuries during the marriage with some exceptions;
  • Property the spouses acquired in exchange for their separate property during the marriage;
  • Any increase in the value of separate property with some exceptions; and
  • Property described as separate property in a written agreement between the spouses such as a prenuptial agreement.

During the property division process, the divorcing couple will have to work out how to divide marital property which makes the distinction between the two types of property, and the categorization of the couple’s property, important to be familiar with. It can help the divorcing spouses negotiate the best possible property division agreement for each of them.