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In a divorce, most couples will need to divide their marital property in a way that is equitable and fair, but what happens to property that belongs to one spouse alone? Before the division of property can occur, the court or the couple must determine what property is eligible to be divided, and what property is considered separate property.

Separate Property vs. Marital Property

Marital property is the term for assets and possessions that a couple acquires during the course of marriage using joint funds. Even if these objects are intended for one spouse’s use, the property is still considered joint property because it was purchased with marital funds. Marital property can also include debt that a couple acquires during the course of their marriage.

Separated property is property owned solely by one spouse. This can include a home or vehicle purchased before the marriage, a savings account that is maintained separately from shared accounts, inheritances, and gifts. In a divorce, separate property is not eligible for division and will remain under the control of the owner.

Can Separate Property Become Marital Property?

It is possible that separate property may be considered marital property under several circumstances. These situations include:

  • Both spouses contribute to the mortgage and maintenance of a home owned by one spouse. The increased value of the home is considered joint property.
  • One spouse adds the other to a deed or title of an asset, allowing for joint ownership.
  • One spouse makes deposits into the other’s separate bank account.
  • One spouse deposits a financial gift into a joint account.

When separate property is combined with marital property, it is referred to as commingling. This mixing of assets may be done intentionally, or it may occur without the couples realizing it. Knowing the difference between separate and marital property can help you retain control of your assets. If you and your spouse are unable to determine what property is separate and what is marital, a judge will determine how to handle your division of property.

At Clawson & Clawson, LLP, we are ready to answer your questions about your divorce case. Our top-rated Colorado Springs divorce lawyers can guide you through this difficult and emotional process. We will be with you every step of the way, and we are dedicated to providing our clients with compassionate, knowledgeable legal representation.

Learn how our team can help with a free and confidential consultation. Contact our offices by calling (719) 602-5888.

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