Legal Categories of Property - Learn the Basics

It is important to understand the difference between legal types of property before you can consider the division of property between you and your spouse. In a divorce setting, there are two main legal categories of property:

Marital, Joint, or Shared Property

First, there is property earned, acquired or built up during the marriage regardless of individual ownership or contribution.  This property is called “marital” or “joint” property and includes income earned, properties purchased, investments made, and debts incurred during the marriage. In some jurisdictions, how a piece of property is titled, meaning whose name is on the account or house, may also be relevant in the legal categorization of that property. Generally, marital property is subject to equitable distribution upon divorce, meaning it is divided fairly between spouses, though not necessarily equally.

Non-Marital or Separate Property

Second, all other property is considered “non-marital” or “separate” and consists of assets and debts that belong solely to one spouse and were acquired before the marriage or through inheritance or gift during the marriage. Assets explicitly outlined as separate in prenuptial or postnuptial agreements are also considered non-marital.  Spouses generally retain ownership and control over their respective non-marital property post-divorce.

Understanding the distinctions between marital and non-marital, as well as joint/shared and separate property, is crucial for equitable property division in divorce. By accurately identifying and categorizing assets and debts, spouses and the court can ensure a fair and just distribution that considers each party's contributions, needs, and legal rights.

‍