When you get married, you agree to share more than just your lives together. You will be enjoined by the property you buy, the children you may have, and other things that make up a life together.

But when things go wrong, and you are headed for divorce court, how do you know who gets what? Most things are set out by the laws of the state in which you were married and reside. There are two types of property where the law is concerned: separate property and marital property.

Marital property is everything that you either earned or acquired during your marriage. You may decide otherwise by entering into a legal agreement such as a pre-marital contract. For instance, any money you earn at work and put into a joint bank account is considered marital property. 

Separate property belongs to only one spouse. Different states will define separate property according to their laws regarding such. Some common forms of separate property include:

  • Property acquired in one spouse’s name and never used for the benefit of the other spouse or the marriage
  • Property owned by one spouse only
  • Gifts received by one spouse only before or during the marriage
  • Inheritances received before or during the marriage

Another distinction is whether you live in a Common Law state, or a Community Property state. 

In a Common Law state, for instance, if your name is on the deed, registration, or other title papers, it belongs to you. An example of this would be the marital home where both spouses’ names are on the title.

If you live in a Community Property state, the following generally is true:

  • Half of each spouse’s income belongs to the other spouse
  • Spouses almost always equally own property
  • Debts incurred during the marriage usually belong to the couple

In Community Property states, separate property is considered to be: inheritances, property owned by either spouse before the marriage, and gifts given to one spouse.

If you have legal questions, please consult our Online Legal Directory to find an attorney in your area.

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