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What is marital property vs. separate property?

On Behalf of | Dec 28, 2021 | Firm News

If you are going through a divorce or considering a legal separation, you may feel overwhelmed with the process. Dividing marital property may be one of the most stressful, as you may have grown attached to certain items throughout years of marriage.

North Carolina is an equitable division of property state, meaning the court will divide marital property according to what is deemed fair and equitable, according to state statutes. Whether you leave the task of property division in the hands of the courts or you wish to negotiate the matter through mediation, it is important to know the difference between marital and separate property.

Marital property

Also referred to as community property, marital property includes everything you amassed during your marriage. In addition to the family home, furniture and vehicles, marital property include the following:

  • Lottery ticket winnings and income tax refunds
  • Intellectual property, such as patents, trademarks and copyrights
  • Memberships to exclusive golf courses and country clubs
  • Gifts spouses gave to one another during the marriage
  • 401k plans, money market accounts and stocks

If either you or your spouse lent property or money to a third party during the marriage, it is eligible for the division once it is repaid.

Separate property

Not all property is marital property. Property and assets you obtained before getting married or after separating from your spouse may remain entirely with you through the divorce process. Certain items, such as inheritance money, gifts you received from a third-party and personal injury compensation, are also considered separate property even if you received them during the marriage.

To remain separate, however, the property and assets cannot be combined with marital property. For example, if you revise your property title on a home to include your spouse’s name, the property then becomes marital. Personal assets deposited into a joint bank account may also lose separate property status.

Before you enter into the negotiations process, make sure you understand both marital and separate property and what it entails.