Divorce FAQ

Characterization of property is important in order to be able to distribute property in a fair and equitable manner. Each state law specifies which types of property are divisible but there is a general rule that can be applied to most cases of property division.

Separate Property
Also called non-marital property, separate property consists of property that belongs to one spouse exclusively. Some states still include some separate property in the marital property to be divided equitably in divorce, most states sets these properties aside as not included in the division. Separate, non-marital property includes:

1. Property inherited by one spouse.
2. Property given to one spouse as a gift.
3. Property acquired prior to the marriage.
4. Property considered separate as agreed upon by both spouses.

Community Property
Also called marital property, community are properties that are owned by both spouses which may include:

1. Property acquired during the marriage by using marital funds or through both spouses working for it.
2. Separate property that has been gifted or contributed to the marriage.
3. Separate property that has become indistinguishable from community property because it has been used in combination with marital assets.
4. Separate property that has been used for the benefit of the family or the couple during the marriage.
5. Separate property that has eventually been changed to become community property (such as real estate properties where the other spouse has been included in the title at some point).

Understanding the Dates
In determining equitable distribution of property, it's important that end dates are established. State laws may vary about the definition of the cut-off dates for acquiring marital properties. The most common cut-off dates used are:

1. The date of the divorce itself.
2. The declared date of the couple's legal separation.
3. The date a separation agreement is executed.
4. The date a divorce action has commenced. 
5. The final date of a spouse's separation.
6. The date of the property's valuation.

The common presumption is that any property acquired during marriage is considered community property and the burden of proof otherwise lies with the spouse who wants to contest it. For example, a car acquired during marriage is considered community property until one spouse declares that it is not because it was given as a gift by his/her parents. Properties that have been proven to be separate property will then be excluded from division.