Property Division in Divorce Cases

In divorces or separations, it is necessary to divide up the property owned between the two separating individuals. Who gets what? It depends on what type of property it is. In cases in which two people are separating, there are three different types of property into which marital property is classified for legal distribution by a judge. Depending on the type of property a specific item falls under, a judge may order it to be given to one partner or the other, or to have it or its value divided in some other manner.

Separate Property

Separate property in a separation refers to property acquired by one person prior to the marriage, as well as a very small subset of property considered separate property even if it is acquired during the marriage. This category may include personal effects and the like, as well as inheritance funds or objects, court awards, pension proceeds, gifts, etc. If one spouse purchases property using solely separate property, the purchased entity is also classed as separate property. However, separate property can merge into the third category – commingled property. For instance, an item purchased by one individual prior to the marriage but maintained through the use of marital funds could become what’s considered commingled.

Marital Property

Marital property in a divorce or separation context refers to property accumulated during the marriage. Depending on the length of the partnership, most of the property is generally classed as marital property. Like separate property, if marital property is purchased with marital funds, then the resulting property is also classed as marital property except in rare cases of explicit exceptions. For instance, a debt could be assigned during the marriage solely to one person on the basis of that person’s separate property, and the debt would not be considered marital property.

Commingled Property

As discussed briefly in the course of describing the last two categories, commingled property encompasses property that is neither entirely separate nor entirely communal. For example, property purchased or maintained with a mix of separate and marital property like a vehicle, jewelry, etc. would be considered commingled property, as would property purchased with commingled funds. Property that is commingled tends to slide into the marital property category as both individuals contribute to its purchase or maintenance, so if you are looking to maintain an entirely separate claim to property or a specific item, it is important to ensure only your funds are used for it.

More Advice

The division of property can be one of the most difficult parts of negotiating a divorce or separation. While a judge can participate in accomplishing this task, it is often better for all involved for the members of the couple to work through the issues together with the help of a skilled and qualified attorney. If you are going through a divorce or separation in Boca Raton, contact an experienced family attorney at Schwartz l White at 561-391-9943 today for a consultation to make sure your property is divided with equity and fairness.