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The difference between marital and separate property

Couples may not always think of property in terms of marital property and separate property. However, the distinction becomes especially important when a couple decides to divorce. The significance is a big one because generally only marital property is subject to the division process during divorce. Therefore, divorcing couples should know the difference between marital property and separate property so that they can develop a legal strategy that furthers their interests.

During the property division process, marital property is divided amongst the divorcing couple. Depending on which state the couple lives in, their marital property will either be divided equitably, or fairly, or split evenly in half. Again, only marital property is divided during the process. Marital property refers to earnings, property and assets the couple acquires during their marriage and also includes joint debts of the couple. Separate property is a different category of property that is generally not divided during the divorce process.

This is where it can get tricky because what some may consider individual property can be commingled, therefore rendering it marital property and subject to division. This is why divorcing couples should be familiar with the property definitions and designations for marital property, separate property, and commingled property. Separate property typically includes property that one spouse entered into the marriage with that was not commingled at any point during the marriage, as well as inheritances, gifts and personal injury awards.

The property division process can sometimes lead to anxiety during a difficult time. After all, divorcing individuals also have to sort out child support, spousal support, and child custody concerns. As a result, the more they are familiar with the different types of property the better able they will be to protect their interests and resolve their property division concerns as efficiently and smoothly as possible.

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