When you are trying to determine exactly what is marital property and what is separate property it often becomes a very confusing aspect that many people do not fully understand.  How does some property stay separate while other becomes marital is never a simple process to understand but with some work it is possible to figure everything out.

First, to determine what property is separate there are three guidelines that apply:

First is was the property owned before the marriage.  If the property was owned before the marriage then it is considered separate property by whichever spouse brought it to the marriage.  Second is whether it was received as a gift or an inheritance during the marriage.  If this occurs, then it is the property of the spouse to whom it was given.  

Lastly, anything that is earned, or bought or received after the date of separation is considered separate property.  Once it has been determined that pieces of property belong to one of these three categories they are then removed from the marital assets and are not included in the marital settlement.  There is generally no way to bring separate property into the marital settlement because it is separate.  

If you feel that you are entitled to the separate property, you will be unable to receive any and must move onto the next important issue.  Another way that property can become separate is if you have something in writing from your spouse giving you specific property.  Any property that is included in the writing is considered separate property and is not a part of the martial assets anymore.  This is enforceable so be careful if you are considering doing this but not honoring the agreement.  

Now that we have determined what separate property is, you can imagine that all property left is marital.  This is correct, however martial property is not the only term used to describe this property.  Another common term is community property.  This term sums up any property that was bought with joint funds, or anything that was purchased together.  

For example, a house purchased during the marriage that involved money from both parties is considered marital property.  If however, the house was purchased only with money used from a piece of separate property then the home would be separate property as well.  As you can imagine it is sometimes very complicated and confusing trying to determine exactly what property falls into what category.  

Some of the best advice to take when trying to divide property in a divorce is to have an appraiser give you the exact value of everything.  This will help you when you are trying to split the assets so that everyone is treated fairly.  This is also helpful since typically the courts want to see the assets divided 50/50 with each spouse taking 50% of the marital assets.

While the martial assets are divided remember, that separate property is not included in the marital assets.  So anything that is considered separate cannot be divided and is not included in the division of the marital assets.  Even if you give your spouse, property in writing it becomes separate property.  It is important to remember in the process of giving alimony, spousal support, or even deciding how to split the assets that only the marital property is considered.  

Always ensure that you both come to a complete agreement on how the assets will be divided

 

...Or ensure that you hire a lawyer who will help you ensure that assets are divided equitably.  If you are able to resolve the division yourself without a lawyer you will be able to save a lot more of the assets for yourself, however this is not always possible.  Ensure that if you have any separate property that you keep records about where the property came from, and how it was acquired.  

If you do not have a way, of proving where the property came from then it could potentially be used as martial property.  This could cause you harm in your divorce settlement, as well as the loss of something that is very special to you.  Always ensure you have the records to avoid this situation from happening.