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What is the difference between marital and separate property?

On Behalf of | Feb 23, 2023 | Divorce |

Indiana courts follow the laws of equitable distribution when dividing up property in a divorce. This means that rather than dividing all marital property evenly between the spouses, the courts will determine a fair and equitable way to divide up the property. Courts will consider the length of the marriage, financial and non-financial contributions to the marriage, and other factors when making this determination. But first, the court will have to determine which assets should be classified as marital property.

Marital vs. separate property

All assets owned by one or both spouses will be classified as either separate property or marital property. Generally, only marital property will be up for distribution in the divorce.

Separate property

When a couple gets married, each spouse may bring assets they have accumulated individually into the marriage. During the marriage, certain assets may also be given only to one spouse. Assets belonging to only one spouse are classified as separate property. Common examples of separate property include:

  • Inheritances
  • Gifts
  • Damages recovered from a lawsuit

Marital property

Often, a couple will accumulate several assets during their marriage. Marital property refers to any property acquired during the marriage. Common examples of marital property include:

  • Vehicles
  • Family home
  • Vacation property
  • Antiques
  • Furniture
  • Bank accounts
  • Stocks

Commingled property

In some cases, a piece of property can start out as separate property but become marital property over time. These are called commingled assets.

For example, if one spouse owns a home prior to marriage, and the couple lives there after marriage and uses marital funds to contribute to the mortgage and improvements done to the home. While the home was initially considered separate property, the use of commingled funds makes it marital property. Therefore, both spouses will likely receive a share of the home or proceeds (if the house is sold).

If you are getting a divorce, it is important to know which of your assets are automatically yours and which will be divided up during the divorce. A family law attorney can review your financial records and other documentation and give you a realistic idea of what to expect to recover in your divorce.