Before you can separate property in a divorce, you will need to divide all assets into separate and marital property. While this may seem like an easy task, it can get complicated.
Separate property is that which you brought into the marriage or includes legally separate assets, such as an inheritance or gifts. Marital property is that which you acquired during the marriage. But these definitions are rather basic and do not account for commingling, which is when a separate asset becomes marital property.
Commingling defined
Commingling occurs when you mix your assets. It can happen easily. If you use a marital asset to pay for upkeep on a separate asset, you have comingled the assets.
Examples
A common situation of commingling is with real property. If you owned a house prior to your marriage, but you and your new spouse live in the house after your marriage, then commingling is going to occur. You will use the money you earn during the marriage on maintenance and to pay for the mortgage, which makes it now, at least partially, marital property.
Another way to comingle is to deposit an inheritance into a joint bank account and allow equal access to the money. Basically, any situation where you do not maintain and keep separate your property is a chance for commingling.
Prevention
Avoiding commingling requires being attentive and aware. You have to ensure that you keep the property completely separate by only using separate property to maintain it. For this reason, you need to be clear on the concepts of separate and marital property. If you were not educated on these concepts prior to your marriage, then the chances are good you will have to deal with commingling during your divorce.
