Separate and Marital Property: Who Gets What in Divorce?

Learn about separate and marital property in a divorce, and how the state you live in can make all the difference in deciding who gets what.

By , Retired Judge | Updated by E.A. Gjelten, Legal Editor

In a divorce, dividing up property can easily become a major bone of contention. Many couples are surprised that, more often than not, the name on the title to the property doesn't control which spouse gets to keep that asset. Instead, ownership of the spouses' property after the divorce will depend on whether the assets are considered one spouse's separate property or the couple's marital property, and whether the couple lives in an "equitable distribution" state or a "community property" state.

What Is Marital Property and What Is Separate Property?

Generally, marital property is anything that you or your spouse earned or acquired during your marriage. (In some states that means before you were separated, while in others it means before you were divorced.)

Depending on your state, marital property may include any of the following types of assets, as long as they meet the "when acquired" rule:

  • your primary home, vacation homes, and all other real property such as business and investment properties
  • bank accounts, stocks, and bonds
  • partnership interests and business assets
  • pensions, profit-sharing plans, stock options, and other retirement and employment benefits
  • household items like clothing, furniture, jewelry, and art
  • vehicles, including aircraft and watercraft
  • life insurance policies, and
  • lottery winnings (based on a lottery ticket purchased during the marriage, even the winnings were paid out later).

The title to the property isn't always relevant. So, for instance, you might put an asset (including a bank account where you deposit your earnings during your marriage) in your name alone, but that won't disqualify it from being considered marital property.

Separate property belongs only to one spouse. Although there are some differences in state rules, there are some categories of separate property that are pretty much universal. Some of these are:

  • property that one spouse owned before the marriage
  • gifts or inheritances that one spouse received, either before or during the marriage
  • property that the spouses have agreed (in writing) is separate, usually through a legally valid prenuptial or postnuptial agreement, and
  • the portion of certain personal injury awards meant to compensate for the injured spouse's pain and suffering, as opposed to reimbursement for medical expenses or other financial losses during the marriage.

Can Separate Property Become Marital Property?

Separate property can change into marital property in some circumstances. Usually this happens when separate property has been mixed (or "commingled") with marital property. For example, let's say Spouse A had a $20,000 certificate of deposit before the marriage. Usually that would be considered Spouse A's separate property and wouldn't be part of the property distribution when the couple divorced. But if Spouse A deposited the proceeds of that CD into a joint account with Spouse B during their marriage, the CD funds would no longer be Spouse A's separate property, because they were commingled with joint funds.

Sometimes a portion—but not all—of separate property can become marital property. You find this most often in situations where a spouse made contributions that increased the value of the other spouse's separate property. For example, say that Spouse A owned a house before getting married and never put Spouse B's name on the title. So far, separate property. But during the marriage, the couple used marital funds to make improvements to the house. Although that's generally not enough to convert the house to marital property, Spouse B might be entitled to some of the increase in the house's value attributable to the improvements.

In many cases where a couple is fighting over property in their divorce, a judge will have to look closely at the specific facts and decide whether the assets are separate or marital property, under that state's rules.

How Is Marital Property Divided in Divorce?

Once it's clear which assets are separate property and which are marital property, the marital property will then be divided between the spouses under their state's laws. There are basically two different methods states use to divide marital property: under "equitable distribution" or "community property" rules. However, as we explain below, the distinction between these two methods isn't always that clear in the context of divorce.

Equitable Distribution of Marital Property

The vast majority of states use the rule of equitable distribution. In a nutshell, the judge will divide all of the couple's marital property (and allocate their marital debts) based on the judge's decision as to what is fair to both spouses under the particular facts of each case. Because of this case-by-case approach, it's important to note that "equitable" doesn't necessarily mean equal (50-50) split.

Each state has its own guidelines for judges to follow when deciding how to distribute property equitably. Some of the more common factors include:

  • how long the marriage lasted
  • each spouse's age and physical and emotional health
  • any income or property either spouse brought into the marriage
  • the couple's standard of living during their marriage, and any time and expense a spouse needs to get the education and training it would take to reach a similar living standard
  • any provisions in written prenuptial or postnuptial agreements that dealt with how the couple's property would be divided if they divorced
  • each spouse's overall economic circumstances
  • each spouse's income and ability to earn, based on education, training, experience, length of any absence from the job market, and caregiving responsibilities for the couple's children
  • whether either spouse delayed pursuing career goals during the marriage in order to care for children or support the other spous
  • either spouse's contributions to the education or earning power of the other spouse
  • either spouse's contributions to acquiring, keeping, or improving marital property
  • either spouse's actions that may have wasted marital property
  • the tax consequences of any proposed property distribution
  • the need of a parent with physical custody of a child to own or occupy the marital residence, and
  • each spouse's debts and liabilities.

Dividing Marital Property in Community Property States

There are nine community property states in the U.S.: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, each spouse owns half of the income the other spouse earned during the marriage, and debts that either spouse incurred during the marriage are generally considered joint debts. (In a few other states, you may opt in to a community property system or designate certain assets as community property. But this can have serious financial consequences, so you should consult with an attorney or financial advisor first.)

Traditionally, community property states required an equal division of a couple's community property (and debts) when they divorced. That's still true in a few of these states—most notably California. By now, however, several community property states follow the principle of equitable division in the context of divorce, at least partially. For example, Arizona and Texas require judges to divide a couple's community property "equitably," or in a "just and right" manner. (Ariz. Rev. Stat. § 25-318; Tex. Fam. Code § 7.001 (2022).) And while Nevada still calls for an equal division "to the extent practicable," it allows judges to divide a couple's community property fairly but unequally if there are "compelling reasons" to do so. (Nev. Rev. Stat. § 125.150 (2022).)

Even when a judge orders a 50-50 property division in divorce, that doesn't mean each individual asset has to be split in half. For example, let's say one of the spouses needs to remain in the marital home, in order to care for a disabled child's special needs. The judge may award the home to that spouse but then order that different assets be sold—with the proceeds going to the other spouse to compensate for half the value of the home.

Can Judges Ever Divide Separate Property in Divorce?

In most states, spouses keep their own separate property when they divorce. However, some states—including Massachusetts and Washington—allow judges to include the spouses' separate property when they're distributing the couple's property during divorce. (Mass. Gen. Laws ch. 208, § 34; Wash. Rev. Code § 26.09.080 (2022).)

Getting Help With Property Division in Your Divorce

The more you fight about anything in a divorce, the more anxiety it produces and the more expense you'll face, particularly in legal fees. But if you and your spouse having a hard time agreeing about how to divide your property, that doesn't necessarily mean that you'll have to go to trial and have a judge make that decision for you.

One good option is to try divorce mediation with a trained, neutral mediator who can help the two of you identify and negotiate a property settlement agreement that will be fair to both of you. And if you're able to reach agreement about all of the issues in your divorce—including alimony (spousal support), child support, child custody and visitation (parenting time)—you can file for an uncontested divorce, which is almost always much cheaper and quicker than a traditional contested divorce.

Many couples who start out with an agreement are able to get an uncontested DIY divorce without hiring lawyers. But there are some situations when you need a divorce lawyer, including when:

  • you haven't been able to reach a property settlement agreement, even after trying mediation
  • you and your spouse have extensive or complicated assets to divide, like a family-owned business, or
  • you believe your spouse is hiding assets.

Note that hiring a lawyer isn't necessarily an all-or-nothing proposition. Under some circumstances, it may make sense to use an attorney's services on a consulting basis—for instance, to help draft or review your settlement agreement. You might also want expert help with specific issues in your property division, such as splitting retirement accounts in divorce.

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