The distinction between separate and marital property is often a point of contention in divorce cases.
Separate property generally includes assets acquired by the husband or wife before the date of the marriage. It also includes property obtained during the marriage through inheritance, gift, or compensation for personal injuries, but only if these assets are kept separate and not commingled with marital property. Marital property includes assets acquired or earned by the husband or wife during the marriage. By the way, it doesn’t matter whose name is on the title.
Marital property, not separate property, is subject to equitable division by the court. And this is why this distinction is so important.
That said, separate property can nonetheless lose its distinct status and become marital property if it is commingled with marital assets or treated as such by the parties. For example, depositing separate funds into a joint account or using them to purchase marital property can transform them into marital assets. Note also, that even separate property may be “invaded” under certain statutory exceptions, such as when one spouse significantly contributes to the acquisition, improvement, or accumulation of the other spouse’s separate property, or when the marital estate is insufficient to provide for the suitable support of a spouse or children.
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