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What's the Difference Between Marital Property and Separate Property?

By Saunders Law Group on December 05, 2013


In marriage, we agree to share everything from our dishes to our debt. But when divorce enters the picture, it’s time to figure out exactly who owns what. Thankfully, we can turn to the law to differentiate between marital and separate property - at least as a starting point. Although the exact laws differ from state to state, all follow a general system of property classification.

Marital Property

Simply put - if you acquired it during your marriage, it’s marital property. If spouses maintain separate bank accounts throughout the marriage, exceptions to this rule may apply to items purchased with individual money. However, anything paid for with funds from a joint bank account (like “your car,” for instance) is considered marital property. In Florida, this also includes any funds or benefits attained during the relationship, such as profit-sharing opportunities, retirement funds and pensions.

Separate Property

If property only belongs to one spouse (usually because it was acquired before the marriage), it’s considered separate property. Gifts (including those given by the other spouse) and inheritance also fall under the “nonmarital” umbrella, along with any property specifically purchased with separate funds under the intention of only being used by one spouse. Spouses can also define certain assets (including debt) as separate property as long as they are documented as such in a valid, written agreement.

*Another special note about Florida law: If any separate property becomes more valuable during the marriage, the increase in value is considered marital property.

 A divorce is never easy, but having a rough idea of how your property will be divided can be a good starting point for negotiations. Ultimately, the expertise of a qualified family law attorney (and often, a C.P.A.) is an invaluable tool when it comes to assessing the value of both parties’ property and distributing it equitably.

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