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Property - What is Separate, what is marital, and what is a gift to the marriage?

Jorgensen, Brownell & Pepin, P.C.

Divorces divide all assets and debt accrued or incurred during the marriage. However, some assets or debts my not be considered marital and therefore not be divided. Determining whether an asset or debt is marital or separate is a major point of contention for many divorcing couples.

Martial property is any property that was acquired by either spouse during the marriage. It is irrelevant which spouse’s name is on the title of the property or who purchased the property. Marital property is available for equitable distribution to either spouse by the court. Separate property is any property acquired by either spouse prior to the marriage, or any property which was acquired through inheritance, or any property that was gifted to the spouse. Separate property is not included in the equitable division of assets and will be awarded to the property-owning spouse. Any appreciation or increase in the value of the property since the marriage is considered marital property.

In some circumstances the actions of the owner spouse may transform separate property into marital property. If a spouse enters the marriage with separately owned property but that property is co-mingled with marital property such that it is difficult or impossible to determine the value of the originally separate property, the court may deem the property marital. Comparatively, if one spouse enters the marriage with separately owned property then uses that property for a marital purpose it may be deemed a gift to the marriage. A typical example is when a premaritally owned home is refinanced in to both parties’ names, it may be considered a joint marital asset to be divided equitably. When either of these events occurs, the court considers the once separate property to be marital property, thus available for distribution to either spouse.

If you are considering a divorce or you are already in the midst of a divorce and have any questions about the equitable distribution of your assets, our experienced and passionate family law attorneys are here to help. Our attorneys are familiar with local and state laws regarding divorce and the complex and stressful issues surrounding a couple’s assets and debts. Our assistance and guidance can help you through the process. If you are need of assistance, please contact our office.

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