“It’s my car… I’m the one who drives it and I make the payments.”
“You wanted the hardwood floors, and the loan is in your name… they’re not my problem.”
These kinds of statements get thrown around all the time when spouses start working out who gets what during a divorce. Usually, though, they’re based on a very flawed understanding of how property division works during a divorce — so don’t let your spouse tell you what you are or aren’t entitled to.
In this article, we’ll help you understand how property division works during a divorce, including how family law courts decide who owns what and how that process is different from the way banks and creditors view ownership.
Understanding Marital Property
Two factors that people tend to mix up during divorce are whose name is on the account (and therefore who the creditors will come after if an account is past due) and who owns the property in the eyes of a family law court.
To understand why these are two different things, you need to first know about the legal concepts of separate property and marital property, which courts use to divide assets during a divorce.
Separate property is any property that you acquired before the marriage, received through gift or inheritance solely to you during the marriage, or bought with separate (non-commingled) funds during the marriage.If you bought a house for yourself before you were married, for example, that house is separate property, and getting married won’t change that. Your spouse isn’t entitled to a share of that house if you divorce.
- Marital property is any property you acquired during the marriage that doesn’t meet the definition of separate property.If you buy a house or car together after you get married, that’s marital property — even if only one spouse puts their name on the deed or title. The only way to avoid this is by working with a lawyer to create a prenuptial or postnuptial agreement, which can override your state’s property division laws.
The important thing to know is that, while the credit card or mortgage company might focus on whose name is on the account, the court doesn’t care about that when it’s time to divide property during a divorce. The court only looks at whether property is considered separate property or marital property, and then it tries to divide all the marital property between the spouses in an equitable way.
It’s also important to know that these rules apply to debt just the same as assets. If your spouse takes on student debt to go back to school or applies for a loan to buy a motorcycle, you might wonder, “What’s that got to do with me?”
The answer is that it has everything to do with you! If you’re married, debts that you and your spouse take on are marital property and get split between the two of you if you decide to divorce, just like assets.
Commingled and Non-Commingled Assets: Why It Matters
One concept you might have heard of if you’ve read much about divorce law is commingling. Commingling is when you blend together funds from different sources. And the status of separate property as your sole possession depends on it not being commingled with marital property.
For example, let’s say you have a 401(k) account with $100,000 that you earned before you got married. That $100,000 is your separate property, and your spouse isn’t entitled to any of it if you divorce. However, any money you earn in the account after you get married is marital property. So if it grows to $150,000 after you get married, then the original $100,000 is still your separate property, but the additional $50,000 is considered marital property.
If you take your $100,000 out of your 401(k), though, and put it into a joint bank account — maybe to buy a house or pay for the kids’ education — then you’ve commingled it with marital funds. It’s now marital property, and there’s no way to restore its status as separate property. Your spouse would now be entitled to their share of that money or anything you purchase with it if you decide to divorce.
The important takeaway is that you need to be careful and think before commingling the property and money you brought into your marriage with any marital assets. No one wants to think about divorce, but people and circumstances do change, and if divorce becomes inevitable, having your own separate property can make things a lot simpler and more secure for you.
Contact the Devolder Law Firm for Help with Divorce and Property Division in New Tampa, Wesley Chapel, and the Tampa Bay Area
Determining who gets what in a divorce is a complex process, and if you’re feeling confused or overwhelmed, that’s okay — we’re here to help. At the Devolder Law Firm, we work closely with our clients and explain the laws that will affect their case in plain language. Our job is to give you a listening ear, guide you through the complex process of divorce, and work to protect your rights and serve your best interests every step of the way.
To meet the Devolder Law Firm team and get advice about your unique situation, call us at 813-724-3880 or fill out our convenient online contact form. We’ll get in touch right away to schedule your initial consultation.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.