If you are separating from your spouse, but aren’t yet divorcing, there are two basic kinds of property to keep in mind:

  • Marital property: Property that either spouse acquired during the marriage.
  • Separate property: Separate property will be treated differently depending on the state. In a community property state, separate property is acquired before marriage, after the marriage ends, or received as a gift or inheritance while married. The spouses may also agree in a prenuptial agreement that property which would be considered community property is separate property. In a common law state, property will remain separate as long as one of the spouses can demonstrate ownership.

Can Property Change Character?

Separate property can become martial property if:

  • Separate property is mixed with marital property – separate income is often put into a joint account.
  • Separate property is used to enhance marital property – one spouse uses separate income to pay for mortgage owned by the other spouse.
  • Separate property appreciates because of marital efforts – one spouse purchases stock that appreciates in value because the other spouse is a stockbroker

Martial property can become separate property if the parties agree that the martial property should belong to one spouse. In common law states, marital property becomes separate property if both spouses owned the property and one spouse later takes his or her name off the title or deed.

How Is Property Divided during Separation?

Courts divide marital property differently between separating spouses depending on two general factors.

1) Whether the couple can reach an agreement

It is important to remember that separation is different from divorce because the couple is still married. This means that property that either spouse earns, even if they are not living together, is considered marital property. Whether the couple wants this arrangement to continue can be addressed in a marital separation agreement.

During separation, many couples come to an agreement about how their property should be divided without having a court intervene. This division of property is usually written out in a marital separation agreement. This agreement about property can later be made part of the final divorce order.

2) Where the couple lives

In community property states, marital property is divided evenly. That is, courts will give each spouse half the marital property unless one of the parties can give a reason why the division should be something other than 50/50.

In common law states, courts will take various factors into consideration when dividing property. As a general matter, common law states follow a principal called "equitable distribution," where marital property will be split in a fair manner.

Regardless of the type of state, a person has no right to the separate property of their spouse, and a court has no authority to divide separate property between spouses.

Do I Need a Family Law Attorney?

Separation involves several considerations that make it different than a traditional divorce. A family lawyer can help you understand how your state’s laws affect your property and what you are entitled to, as well as protect your assets in the event you and your spouse cannot make things work.