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Marital property vs. separate property: What is the difference?

Dividing property in a Georgia divorce can be an emotional and somewhat complicated process. It is often difficult to part with items you have accumulated throughout years of marriage, especially if you are unsure of what marital property entails.

Contrary to what some people may think, not all property is marital. There may be some items and assets that stay completely with you, even after the divorce settlement is finalized. It is important to understand the difference between marital and separate property to ensure you receive everything you are entitled to in the final decree.

What is marital property?

All property and assets you have amassed during your marriage is considered marital, or community property. In addition to the family vehicles, homes, furniture and bank account contents, marital property also includes the following, less common items:

  • Lottery ticket winnings and income tax returns
  • 401k plan, retirement plans, stocks and term life insurance policies
  • Exclusive country club and golf course memberships
  • Intellectual property, such as trademarks, copyrights, patents and royalties
  • Expensive collections, such as wine, art, antiques, coins and classic cars
  • Gifts spouses exchanged between one another

If you or your spouse lent money or property to a third-party during the marriage, that is eligible for division once it is repaid.

What is separate property?

Separate property are items and assets that remain separate from marital property during the marriage. This includes property you owned prior to becoming married. It also involves inheritance money, personal injury compensation and gifts given to you by a third party before, during or after the marriage.

It is critical that separate property and funds do not become intermingled with marital property, at risk of losing its separate status. For example, if inheritance money is put into a joint-bank account with your spouse’s name attached, that money may then become eligible for division in the divorce settlement.

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