Can separate property lose its separate status?

On Behalf of | May 19, 2021 | family law |

Sorting out property division in a divorce can be some of the most challenging part of ending a marriage. Both parties want to get their fair share but determining exactly what that looks like can be complicated. The issue becomes even more complex when separate assets co-mingle with marital assets.

Separate assets versus marital assets

What assets are considered separate and which are marital? In Georgia, marital property is divided based on “equitable distribution” laws. This means that marital assets will be divided in a manner that is fair, even if that does not lead to an exact 50/50 split. Generally, marital assets are all that a couple obtains during their marriage until the filing for divorce, no matter whose name the title is in.

Separate assets, on the other hand, include anything a person owned prior to marriage. Inheritances granted to one spouse only are also separate assets. Gift given to one spouse only from a third person are also considered separate assets. Finally, separate property includes payments for pain and suffering granted to a party in a personal injury claim. Separate assets are retained by the spouse that owns them and will not be included in the marital estate unless co-mingling has occurred.

Co-mingling separate assets with marital assets

It is possible for a separate asset to lose its status and turn into marital asset through a process called co-mingling. Co-mingling occurs if a separate asset is so entwined with a marital asset that it is no longer possible to trace back the separate asset from the marital asset. For example, if you receive an inheritance that is placed in a joint bank account used by both you and your spouse to make purchases, the inheritance may lose its separate nature and will have co-mingled to the point that it will be considered a marital asset.

Learn more about divorce in Georgia

Property division can be challenging, especially when co-mingling has occurred. This post is for educational purposes only and does not contain legal advice. Our firm’s webpage on divorce may be a useful resource to those who want to learn more about this topic.