What is Marital and Non-Marital Property? 44

Understanding the Financial Aspects of Marriage and Divorce

Marital property is essentially all property and assets that were acquired during the marriage , otherwise known as “community property “.

In general, all property is presumed to be marital property unless an exception is established. These exceptions include:

  • Property that was owned by one of the spouses prior to the marriage
  • Property that is acquired as a gift or through inheritance
  • Property that is designated as non-marital property in a prenuptial agreement or other legal instrument signed by both parties
  • Property acquired after a legal separation

Property falling into one of the categories above would likely be deemed as non-marital or “separate” property and is not subject to the distribution process during a divorce.

However, distinguishing between marital and non-marital property can get quite tricky.

Marital property that is acquired by converting non-marital property now has a community interest and is subject to the normal property distribution process. A marital home for example, that is purchased with proceeds from selling non-marital stock becomes part of the marital assets. Furthermore, once the home is purchased, any improvements and additions to the home are typically made with marital funds – that is, income earned after the marriage and thus considered as community property.

To preserve the non-marital interest, the spouse must be able to clearly track the non-marital funds through receipts, bank statements, etc. But the more the non-marital property is “comingled” with the marital property, the more difficult it becomes to separate the two.

Non-marital funds deposited in a joint bank account for example would be difficult to trace since both parties are making deposits and withdrawals from the account. At some point, the initial non-marital deposit is absorbed into the marital funds and without a legal agreement between the parties acknowledging the separate property, it is likely that the account will be treated as community or marital property, regardless of who deposited what.

To protect your non-marital property, it is important to keep it separated from the community assets. A separate bank account for example, will distinguish that inheritance money from marital funds. Just remember that any income you earn during the marriage from normal wages and the like is considered to be marital property. Depositing these funds into your separate account would still be considered comingling funds, even though the money was earned by you.

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Discussion

  • s bouch

    if i owned a home and x- amount of acres and it was given to me by my parents and i had took out a mortgage on it during a prior marriage and then was divorced and then re-married and then my previous spouse gave me the property back scott free but requested i re-mortgage it to have her name removed from the deed and loan but in doing so it was required by the mortgage co. to have my new spouses name added to the mortgage and deed and now after 5 years i am divorcing again. can my spouse take my house and property. we had no children together. can she have me removed during the divorce. no violance on either side either.

  • Cary kent

    I owned my home and property before marriage. My spouse did not live with me or contribute to the property or upkeep off it. Is she entitled to any interest in the property or home, during the divorce proceedings.

  • debbie

    If i marry someone who is filing for bankrupty – am i liable for any of his debts that were acquired before our marriage and that are not in my name?

  • David Sitomer

    My wife bought a house in 1972 to be used as her and a group house. Rents were charged usually to at least three unrelated people. We married in 1978. Were these rents now marital or separate property?

    During the maraige of 30 + years, I paid some utilities not rent. Rents from the house were used to pay mortgage, some utilities , improvements, etc. At some point, my wife took an equity loan requiring my signature then that was absorbed by a loan which did not require husband’s signature. After a recent fire, wife approved my being/acting general contractor with her (only home owners may act as general contractor in DC without a license) .

    Is the home now marital property in DC?

    • Tina

      Husband purchased home in 1999 and lived there until 2004′ Moved in with wife (married 2004) They rented property of Husband. Is husband home marital assett’

  • jamie

    can i sell my ski doo that was givin to me and my son as a gift for xmas will i’m going through divorce.

  • et

    If I was awarded a structured settlement due to an auto accident prior to my marriage and received one settlement payment during my 3 year marriage is my wife able to use that payment or any of the structured settlement as a marital asset? We never shared a bank account although she would sometimes deposit money into my account to assist with paying bills. I live in Michigan. Another question is if I purchased an automobile prior to our marriage and paid it off during out marriage, she has never drove the auto and it was in my father’s name until recently when he put it in my name and the secretary of state required us to put that I paid $1 for it on the title is that considered a marital asset?

  • Stacy

    I live in New York. I bought a house with money from an inheritance is this house considered marital asset? I deposited the money into an account with only my name.

  • Jennie

    okay so everything that my husband got was help from his dad. i didnt work so i couldn’t take a part in with what he bought. i’m wondering if that stuff is all his? we was together since 2008 and got married in 2010. we have three kids. but now since things been going crazy everything change from ours to just his. i would like some answers if you can write me back. i’d greatly appreciate it thanks.

    • winnie

      I am being pressured to marry! I have a sustantial retirement & 401k Plan funds. I also have acreage, enough cash to build a new home, automobile, excellent credit, & owe no debts. I have no children and 25 years on the job. I am planning to build a home soon. He wants to marry now, does not want to wait for the home to be built, and does not want a prenuptial. He has NO retirement funds, a few thousand dollars to his name, and a vehicle. Am I wrong, to want a prenuptial, to at least cover my 28 years of vested retirement? I do not want to have to risk losing this to anyone. How can I know if he just wants to marry me for my assets or if it is for real. He absolutely will not agree to any form of legal paperwork, even regarding my retirement much less my land and home to be built. Now that my retirement is finally building and increasing due to my age, the next 5-10 years will be crucial. What do you think? Should I trust him and his confessed love for me, or protect myself and lose him? What are your & thoughts on whats going on here and what will happen legally if there is no prenup. We live in the state of Florida. Also, I have no baggage, my family is wealthy, & I stand to inherit quite a bit. He has LOTS of baggage, grown children and all of his family are basically bankrupt, in debt, or have terrible credit. He is a hard worker and very unselfish and giving with what he has. I am torn. Help! I am in love and don’t want to loose him or appear greedy, because I am not. But I don’t want to be foolish either, I have worked all of my life and taken care of myself, Please give me your advise and thoughts.

      • Allen

        Hold your ground. If that person refuses to sign anything then he wants a sick from or control over you.Tell him good bye and see what happens. I am doing the same right now and the other person is willing to walk. I have realized I trust no one. Remember this, marriage is business, you don’t need a lawyer to get out of love, just a marriage.

      • Marie R.

        Whatever you do, don’t be pressured to marry anyone! There is something suspect about his wanting to move so quickly into marriage. You have alot to risk and he should be willing to sign a pre-nup that will protect you should the marriage fail. The fact that he isn’t willing to take that step should be a flashing red light for you. Trust me…I speak from experience, as someone who is still reeling from a devastating divorce from a broke down, penniless a** who used the same pressure tactics on me that your guy is using. You worked too hard for your achievements. HOLD YOUR GROUND!

      • nr

        1) Marry on YOUR level.
        2) He view you as his meal ticket.
        3) Make sure he signs a detailed and specific pre nup
        4) Keep all of your current assets seperate, all the time or they may become marital assets
        5) Remember marriage is part romance and business (he sounds like he’ll make a poor business partner)

  • Maude

    I inherited land from my father’s trust after I was married in the state of Florida. My husband quit his job after we were married 6 months and has never put one penny into the marriage. He claims to be disabled but he works around the house, helped renovate the house adn helped me with a business I inherited as well. I have paid for everything that went into the house and I pay all the bills, I have given him and his family land and money to compensate them for any work they helped me with. We have been married 9 years and the only money he has contributed was a soc security check he received in a lump sum and he spent it all on a new truck and bass boat. I am also legally blind and my business and home is all I have. My husband was abusive verbally and physically, but since I never called the police he says no one care. He is also addicted to pain killers he gets from friends. Is my inherited property or anything I bought outright for myself considered marital property if I paid for it with money I got from selling inherited land?

  • khende

    Is my home considered marital property if my husband signed away his homestead rights at closing?

  • Maurice George

    I have a Simple IRA can my ex-wife collect on this if my son is the benificary

  • Donna

    If you earn your pension in Illinois and retire to Nevada and marry is the pension community property? I already receiving the pension prior to marriage and have kept in a separte account.

  • Donna

    is a pension earned in Illinois and receiving in Nevada community property if I marry?

  • paula dzivasen

    my husband and i are splitting up not filed for divorce yet we lived together for 7 yrs before marriage can the property aquired during the living together time be considered marital property?can i sell something without being charged with theft?

  • vanessa

    i am of hindu faith and as per our legistlation, two months earlier we have to be married legally then do religious marriage. After our legal marriage, i gave my husband money for completion of his house construction for us to live after our marriage ceremonies.
    Afterwards i received as gifts from my parents on my birthdays a gas cooker as well as a washing machine, i also took a loan to furnish our house. however i don’t have the receipts in my name. The gas cooker and the washing machine are in my father’s name while the other asset are in my husband name.My old teenage studying table is also in his possession and he does not want to let me have anything.
    i also bought many expensive kitchen equipment such tupperware boxes and pans.
    I asked my husband casually for them but he does not want to let me have my assets back.
    We are separated and he sent me just my clothes
    We are actually in divorce procedures, we are married under community regime.During the divorce will i be entitled to division of property??
    can i claim money for my assets?

  • Michelle

    I have a hud home build for me many years ago. I was dating someone and added their name to the title of my home in 2005 in 2007 after having NO mortgage on my home he took out a consolidated loan paying off his credit card debt and using the rest to do repairs on my home. We married over a year later. Now we are divorcing, I pay the mortgage and he has did a quit claim. I have since found out that no matter what the mortgage is attached to my home. We are divorced now but the judge has yet to decide division of assets and debt. What should I expect the judge to decide? Will my home continue to be my home? Is the mortgage that is placed on my home considered pre-marrige debt?

  • Ricky

    I hand accident at work, and will be receiving compensation money from the insurance. If my wife and i get divorced, is she entitled to some of that money?

  • blondchik

    Me and my hbby was apart quiet awhile and i moved back in with him april 1st of this year and he left april 28th ..have not heard from him in almost 3 months now dont know where he is at and he has had his number changed …well since this i have been keeping up all the bills here at the house but the house payment is in in his name and i been sending a money order with my name on it with his account number …would he be able to take this place from me and the courts make me move since he abandoned it ??? Plus he had never returend to get the rest of his things and i want them gone ..what can i do about that?? OHHH and i am in South Carolina

    • nr

      You can most certainly file for divorce on the grounds of abandonment. Make sure you keep a good record of everthing you are doing. Pay all bills, property upkeep etc from a seperate account (not joint). Make sure your paycheck is NOT deposited in a joint account. Never pay cash, always use a check or money order. Depending on your proof of abandonment the judge will likely rule in your favor, that may include him selling the property and given you a portion of the proceeds

  • Wendy

    In 1998 I was divorced in NJ and received child support. I remarried 1/1/03 and continued to receive child support until moving to AZ in February 2008. I’m now divorcing. Is there any argument that the child support received from 1/1/03 through Feb 2008 is considered separate property and should be reimbursed to me even though it was comingled into a joint account in 2006? Please let me know if you need additional information. NJ is Common Law and AZ is Community Law. I never received child support while living in AZ.

  • Jeanelle

    I have stocks about $150,000.00 in my separate account. I’m married for over 11yrs. I’m considering divorce since my husband is having an affair and is being so disrespectful to me. He feels he can trash me as he wants. Is this my lifetime investment part of marital asset?

  • mike landers

    are gifts recieved during a marriage from one spouse t another considered equitable property in a divorce?

  • Warren

    My wife is due to inherit money from her father in England. She is English but is a resident alien. We live In georgia. We plan to use the money to purchase a new home. Her dad is worried about the money if we get divorced. My thought was a second mortgage. Is there any other way to protect her inheritance? Thanks

  • Kwoood

    Sign a GOOD Pre Nuptual otherwise YOU are a FOOL!My 1st marriage lasted 9 months,i bought zero because she was a con artist.My wife now wanted to be a US Citizen,I had her sign a Pre Nup,overseen by her own Atty.Now 8 Years Later,she has changed as have I,im Ill with dementiia thinking she would care for me,instead she has made my life BORING,she has accused me of everything yet Ive done nothing.her and her sister are best friends now after being apart for years.She is packing her bags,doesnt talk,the worst in bed and soon good riddence and she walks out with ZERO,not even the new car i bought and registered in MY name.Stay single or have her sign a Pre Nup.I havent had a HOT meal in months,just Turkey sandwichs!

  • Help

    My daughter was living with a guy for 4 years and all bills were split 50/50. About 6 months ago they bought a 5th wheel (on payments) from the place the boyfriend worked and daughter was under the impression it was in both of their names. Come to find out as they recently split up that he put the 5th wheel in just his name. Does she have any legal recourse to getting any of the money she contributed? She paid 50% of each payment and thought her name was on the title? NOw she is finding out they lied to her. She has proof of all payments made.

  • Ned in need

    I am in middle of divorce in calif..ex wife cheated and new bf bought her a harley..can it be used as added assets for her?? Showing she has more assets than I when it comes to her wanting alimony..

  • t

    husband bought 2nd house before we were married. We have been making mortgage payments on it 30 years. is any of the house mine in divorce. live in ca

  • kevin

    My wife and Ipurchased a home five years before we got married is that considered a marital asset in the state of Ohio?

  • feehop

    I have been married for two years almost three and my husband has never held a job longer than two weeks. I owned my home for several years prior to us getting married and have supported the household solely. When filing for a divorce, how can I ensure I keep all my assets and don’t have pay him any alimony. He is a convicted felon as well. I NEED TO GET OUT FAST with little financial impact.

  • Amy

    I bought a house in Tennessee before I was married. My husband now lived with me when I bought it. We got married 2 years after I bought it. Is my house considered marital property?

  • candy

    My father put an addition on my house and that was my inherritence. The receipts equal 150K. My husband and I are getting a divorce. Does that mpney my dad put into the house get divided or will they deduct that from the equity that is in the house? We live in Ma.

  • Robert A

    I was married at the time I inherited an estate from my mother which included a house. My wife and I lived in that house for several years until I purchased a larger property with moneys I inherited from same estate. The property I inherited was then used as a rental property and the rental proceeds were applied to the mortgage payment for the new home. I chose to mortgage the new home for tax purposes instead of paying cash. How will this property be treated in NY divorce court if I no longer have they records to prove the marital property exclusion?

  • Glpyc

    Prior to our marriage my husband bought land in W.V. Now we have built a home, dog kennel, 2 work shops. If he should die does the prperty become my asset or do I need to have my name added to deed?

  • shannon

    My daughter was killed 6 weeks ago in automobile accident, now my husband who isnt her father states he wants a divorce and hes taking half of what I get from her estate. Can he do that?

  • Chely

    My husband divorced from his ex-wife 13 years ago,
    but he still paying her spouse support. He gets deducted from his pay
    check $500.00 every other week. For some reason, when they divorced,
    her attorney put her in different category. I mean CHILD support NOT
    SPOUSE support even so she is a 54 years old women and they never had
    children.

    I would like to know if I include my husband’s name
    in my house title, am I in risk of losing my property in case he
    stops paying her. Is she can be able to put a lien on the property?

    Is the child support officer or a lawyer can make him
    to sell the property to pay wherever he owes?

  • Retha

    I lived in Tennessee and was married for almost 5 years before my husband died suddenly from heart disease two years ago. We had a prenup which clearly stated his pre-marital property from mine, including two business bank accounts, as he owned a business. The prenup also stated that all earned income during the marriage was marital property. He eventually added me to the accounts so as “should anything ever happen to him I would have access to our money.” I deposited my income into those accounts. After he died, the bank locked me out of the accounts, saying that since they were business accounts and he was the sole owner of the business then that made him sole owner of the bank accounts. We paid all of our personal bills out of those accounts and they were the only two we had, Subsequently, his daughter took everything; the business (which was fine because I know her dad wanted her to have it), the house I was living in (in fact I received an eviction letter three, yes THREE weeks after he died), plus all the money in both bank accounts, Obviously all of our money was comingled into those accounts. I have had two lawyers working on this case. The first, a estate and probate lawyer, strongly believes I have a case but she does not litigate and since the other party decided to fight I had to hire another lawyer that did litigate. After 18 months with him, he is now saying he believes I forfeited my right to any of that money because of the prenup, even though all of our earned income was in them. I’m at a loss of which way to go. If I pursue it and lose, the other party will seek damages in the amount of their lawyers fees so I get nothing and am out those fees also. Any ideas or suggestions?

  • Jim hazzle

    I live in TN and have been married a little over a year. Before our marriage I was injured very badly in a pipeline accident, this happened in 2007. My case did not settle until 2012 and I got married a few months before I got my injury settlement. I bought a house which I paid for with my injury money and her car as well, she has slandered me on Facebook and to many ppl in our community, is there anyway she can get anything at end of our divorce? I have messages she sent me saying she didn’t want any of the things I have bought, and I have proof the money used to buy the house came from my personal account. Will she be entitled to anything?

  • Rebecca

    My husband and I are separated and I have a garage that I have rented for the last 3 years, my husband has not had access to the garage for the last 6 months. He recently broke in and stole some property. Do I have any legal rights since he has not been now or ever was on the lease?