Married couples typically share almost everything they own with one another. They may then have to work out a way to divide those assets when they divorce. It is standard practice to treat any income earned during the marriage and any assets purchased with that income as marital property.
Spouses have to determine what those assets are worth and then negotiate a way to divide them. If they cannot, then they have to pursue a litigated divorce. A judge can divide their property by applying state statutes after reviewing an inventory of assets.
Some property is exempt from division because it belongs separately to one spouse or the other. Inherited assets, gifts and property owned before the marriage are typically all separate assets that people do not need to divide when they divorce. However, commingling can make those resources vulnerable to division. What choices might lead to claims of commingling?
1. Giving a spouse control or an ownership interest
People who inherit assets or receive valuable property as gifts often want to share their good fortune with their spouses. They might add a spouse to the title of the home they inherited from their parents, for example.
Other times, they might give their spouse a debit card attached to the account that holds the money they saved before getting married. In scenarios where spouses give one another access to and control over separate property, there could be credible claims of commingling made later.
2. Depositing resources into marital accounts
One of the most common forms of commingling involves using marital bank accounts to hold separate property. The act of depositing money earned before marriage or received through an inheritance into a shared account is a form of commingling that gives the other spouse a reasonable claim to those resources. People generally have to keep their separate property truly separate if they want to avoid losses later.
3. Using marital resources to maintain assets
Many valuable resources require ongoing maintenance. Businesses and real property, for example, require practical work and financial investment.
When spouses use marital income to cover maintenance expenses for separate property, they open themselves up to claims of commingling later. The same is true when they allow a non-owner spouse to perform work to help improve or maintain their separate property.
Understanding what may constitute commingling can help people prepare for property division proceedings. Those with separate property may need assistance protecting their assets during divorce.
