What is the Difference Between Marital and Separate Property?

One of the most important things to understand during the asset division of a divorce is the difference between marital and separate property. Technically, in the state of Massachusetts, all property is up for consideration in the division of assets, and a judge could award separate property as well, but typically, separate property remains with the original owner. What’s the difference between these two types of property?

Marital Property

Marital property refers to all property that was acquired over the course of the marriage. Regardless of whose name is on the deed to a house, for instance, it is marital property if it was purchased during the marriage. The same is true for cars purchased during this time or bank accounts opened during the marriage.

Separate Property

Separate property refers to the assets that an individual brought into the marriage. This might include a family heirloom that was owned before the wedding day, a savings account solely owned prior to getting married, or an inheritance given to only one party.

Making matters even more complicated is the fact that the divisions between marital and separate property are not always obvious. If one party owned a savings account before the marriage but then added their spouse to the account and both individuals put money into the account going forward, it has become commingled property. Likewise, one individual may own a house, but if both members of the marriage end up making mortgage payments or funding improvements to the property, the line is no longer quite so clear about whose house it truly is.

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