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Do you know what is marital versus separate property?

| Mar 23, 2021 | Divorce |

Looking over your property is part of planning for divorce. You need to figure out how much property you have and what you will have to share with your spouse. If you don’t have a marital agreement, like a prenuptial or postnuptial agreement, then you will either have to set your own terms or ask the courts to split your property.

If you file a contested divorce where the judge is the one making decisions, it can be hard to predict the outcome of property division. There are many factors that influence how a judge might rule in such cases, ranging from how long you stayed married to your health and earning potential.

However, it is true that the courts only have the authority to divide certain properties and debts during a divorce. Understanding the difference between marital and separate property can help you more closely predict the outcome of property division in an upcoming divorce.

What constitutes marital property?

Under North Dakota law, most everything you learned, purchased or otherwise acquired during your marriage is marital property that you and your ex have a joint interest in. Whose name is on the account or who actually made a purchase will matter far less than when you completed a transaction or earned the income used to make the purchase.

Some people think that benefits or assets held in their own name, like a retirement account, aren’t marital property. Any amount invested, earned or accrued during the marriage will generally be subject to division.

What is separate property?

Separate property belongs solely to one spouse and is generally not vulnerable to division during divorce proceedings. Things that you owned or money you earned before you got married are usually separate property. The same is true of debt you accrued before marriage.

Inheritances and gifts made to one spouse and not both generally remain separate property even if someone receives the inheritance or gift during the marriage. Establishing certain assets of separate property can help you protect them from division. However, certain circumstances can make separate property into marital property, like commingling.

Looking closely at your property can give you an idea of what is marital and what is separate. That can be a good starting point for planning for the asset division process in your upcoming divorce.

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