Marital Versus Separate Property: What's The Difference?

Georgia follows the equitable distribution approach to property division in divorce. Rather than defaulting to a 50-50 split of the marital property, deciding who gets what requires considering a broad range of circumstances. The ultimate goal is to reach a reasonable arrangement based on what's fair in your unique circumstances.

But what counts as marital property? The answer is not always clear-cut, and the line between marital and separate property can become a source of dispute in many divorces (particularly high-asset cases).

Marital Property

All property acquired by either spouse during the marriage is generally considered marital property . Even if only one spouse has title to the property, it's still considered marital property unless it fits into the narrow category of separate property.

During divorce, all marital property will be subject to the property division process.

Separate Property

Separate property, by contrast, is deemed to belong only to one spouse. It generally isn't divided during divorce. However, it can still influence the overall determination of asset division.

Separate property includes:

  • Property owned by one spouse prior to the marriage
  • Gifts to one spouse only
  • Inheritances
  • Property deemed to be separate in a prenuptial or postnuptial agreement
  • Appreciation or earnings from separate property

As you can see, the definition of separate property is much narrower than marital property.

Keeping Separate Property Separate

Property that starts out as separate can nonetheless be treated as marital property if it isn't kept separate. When separate funds are commingled with marital funds, for example, it can become difficult to trace which funds (and earnings on those funds) belong to only one spouse.

Many disputes in complex divorce cases center on:

  • Whether the property was separate to begin with
  • Whether the property remained separate throughout the marriage

Because these issues are so complicated, it's important to speak with a lawyer about the specifics of your case.

Get Professional Guidance On Your Property Rights

At Terri Herron Law in Atlanta, our attorney can help you determine which property is marital versus separate in your divorce case. Call 404-692-6487 to schedule a free consultation or send us an email. We have five convenient offices.