What Is the Difference Between Marital Property and Separate Property?

Published on July 1st, 2018

Marital Property vs. Separate Property During a Divorce

Owning property is an important factor in the economic development of individuals. It symbolizes both personal and professional growth and builds wealth over time. The possession of property also gives individuals the exclusive right to use their resources as they see fit, when they need to. In most societies, ownership of property has often been used as a yardstick of measuring their success. When property is acquired during marriage, then the term takes a different turn altogether because those who are enjoined in the marriage are usually bound by marital property law. When couples want to divorce the aspect of marital and separate property comes up in court proceedings. It is important to understand the difference between marital and separate property as interpreted by the law.

The process of divorce involves the division of property, which can be quite an overwhelming and complex activity. The term property usually encompasses a wide spectrum of things and objects, including tangible assets as well financial investments and retirement interests. There are differences between separate and marital property that is usually interpreted in law.

Separate Property

Separate property includes property or properties that either spouse owned prior to the marriage union that was maintained as the separate property of that spouse. Moreover, inheritance received by either the husband or the wife during periods of the marriage or before is usually classified as separate property, so long as it was not co-mingled. Typical gifts from the husband, spouse or even a third party (including relatives) may also be viewed as a separate property during a divorce proceeding.  However, the increase in the value of separate property, absent a marital agreement, will likely 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 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.  However, each case is unique. To get specific information on your divorce case, contact Pollart Miller LLC for a personal consultation.