The biggest difficulty in separating out each spouse’s property and/or debts from marital property, or the “marital estate,” is that most times spouses will commingle their property and/or debts during the marriage. Unless a very clear accounting is kept making it clear that the intent of the spouses was to maintain the property or debt as separate from the marital estate, it is most likely that the property or debt will not be considered as separate but as marital.
When married couples combine their finances, the property and/or debt becomes marital and not separate. A party should not believe that commingling assets and debt was foolish now that they are getting divorced, if the intent of combining assets at marriage was to be sure the spouses are truly partners in the marriage venture. Research has suggested that spouses should not keep their money separate, but manage their finances together.
However, once parties have commingled their finances, those commingled assets or debts become marital. Commingling of separate property and debts does not only happen by combinging accounts. For example, if parties get married where one party owns a home, but the name of the home is then changed into the name of both parties (a gift by one spouse to the other), or marital assets (income of either or both of the spouses) are used to pay the mortgage on the home and/or maintain the home, then the home becomes, at least in part, a marital asset.
Finances that have not been commingled can be considered as separate property. The same goes for debts.
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