The Difference Between Marital and Separate Property in a Divorce Case

Owning property symbolizes both personal and professional growth and builds wealth over time. And, in most instances, the possession of property gives an individual the exclusive right to use their resources as they see fit. However, when property is acquired during marriage, it may be considered joint marital property, regardless of how it is titled. When couples divorce, the issue of division of property will be addressed in the court proceeding.

The term property includes tangible assets to include property, as well as financial investments and retirement interests. There are differences between separate and marital property that is usually interpreted in law and it is important to understand how the law interprets each.

Separate Property

Separate property includes property or properties that either spouse owned prior to the marriage, or that one spouse received by gift or inheritance during the marriage, so long as property was not co-mingled with marital assets and so long as it was not jointly titled in both spouses names. While the principal value of this separate property will not be considered a marital asset, the increase in the value of that separate property, absent a marital agreement, will likely be considered marital. For example, if one spouse owned a home prior to the marriage and never put the other spouse on the deed to that home, the value of the equity in that home at the time of marriage will remain that spouse’s separate property. However, the increase in the value of the equity since the time of marriage will be considered marital property.

Marital Property

Marital property, on the other hand, is all assets that were acquired by either spouse during marriage, regardless of how the asset may be titled. For instance, 401K and stock options obtained in the name of one spouse will be considered marital property when such property was acquired or increased in value during the marriage. There are exceptions to marital property designation in cases where the parties had a validly executed pre-nuptial or post-nuptial agreement.

During the process of divorce in Colorado, the marital property is divided “equitably”. This does not mean that marital property is always divided equally. The court will take into consideration the respective contributions of each spouse to growth of the overall marital estate and will determine how best to equitably divide the marital estate between the spouses.

Would you like to know more?  Contact Denise Gonzales at or 800-808-0012.


From the March 2019 Newsletter