Couples who decide to divorce must decide what to do with their property. There are two types of property a couple may have. These are called separate property and marital property.
Separate and marital property
Separate property refers to assets that are owned by one spouse individually and are not considered marital property. These include assets that are acquired by one spouse before the marriage, gifts or inheritances one spouse receives during the marriage and assets that are specifically designated as separate, usually in a prenuptial agreement. Separate property is not subject to division in the divorce. It remains the sole property of that spouse.
Marital property includes assets acquired by either spouse during the marriage. It may include real estate, retirement accounts, investments and bank accounts, for example.
Dividing the property
Marital property is subject to equitable distribution in a divorce. This means that it will be divided fairly, but not necessarily equally. The court considers a list of factors when deciding how to divide the property. These include the duration of the marriage, each spouse’s income, earning capacity and property they brought into the marriage as well as each spouse’s contributions to the marriage, such as homemaking.
It will also consider whether one spouse wants to keep certain assets, like a home or business, any intentional waste of marital assets by either spouse and any other factors it finds relevant.
The amount of property each spouse receives will depend on the couple’s circumstances.
