Property Basics in a Divorce
Typically, the longer a couple is together, the more property they acquire. This can be especially true for couples that cohabitated before marriage. In the divorce context, "property” isn’t limited to a couple’s real estate portfolio. Instead, a couple’s property includes all types of assets, such as savings, vehicles, furniture, televisions, investment accounts, and a family business.
In every divorce, spouses have to identify all property as either "marital" or "separate." Marital property is owned by both spouses and includes assets which were acquired or went up in value during the marriage. Typically, marital property is divided during a divorce.
Separate property is property that was either owned by one spouse before the marriage or was acquired by one spouse through a gift or inheritance. Separate property belongs only to the spouse that acquired or received it and isn’t subject to division in a divorce.
What Is Commingling?
The challenge for many cohabitating couples is that separate property can become "commingled," which means that after the marriage, separate property becomes combined with marital property. For example, let's say you entered a relationship with a car and after your marriage, your spouse paid off the car loan—the car may now be considered commingled marital property.
Unmarried couples who plan to live together for a long period of time or purchase valuable property may want to use a cohabitation agreement—or "living together contract"—to address whether and how they will share income and who will own the property they acquire during their relationship. Agreements like these can be helpful if the couple ends up marrying and then divorcing and arguing about the property they bought before they tied the knot.
Prenuptial and Postnuptial Agreements
Prenuptial agreements (“prenup”) and postnuptial contracts (“postnup”) are similar, but one is made before marriage and the other is made after. Prenuptial and postnuptial agreements can cover alimony and how to divide property and debts in a divorce. Although the rules vary from state to state, most agreements can address:
- dividing property between the spouses
- either spouse’s responsibility for spousal support, including the amount and duration, and
- each spouse’s responsibility for certain premarital and marital debts, including credit cards, loans, mortgages, and medical bills.
Couples who lived together before marriage can use a prenup or postnup to confirm and maintain their premarital separate property and identify jointly-owned assets. This way, if they end up divorcing, they will have already addressed the property they each brought into the marriage as a result of their cohabitation.
Questions for Your Attorney
- My spouse and I bought a house together before marriage. After we got married, I quit working to raise our children, but my spouse continued to pay the mortgage. Now that we're divorcing, we want to sell the home. Do we own it equally?
- My spouse and I had separate bank accounts when we cohabitated and during our marriage. Does this mean we each get all of the money in our own accounts? Am I entitled to any of the money my spouse earned during our marriage?