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Are your separate assets really separate? Understanding ‘commingling’

| Dec 28, 2020 | Divorce |

If you’re contemplating divorce, you may think you have a pretty good idea of what assets you’ll get in the settlement. Perhaps you and your spouse have maintained separate checking accounts and credit cards in addition to joint accounts. Maybe you owned the lakeside cabin you vacation in every summer when you got married. You also have the inheritance your grandmother left you.

That’s all separate property, right? Maybe not.

It’s separate unless it’s been “commingled” with any of your spouse’s separate property or marital property owned by both of you.

Examples of commingling

Did you ever pay the mortgage or make renovations on that cabin with funds from your joint checking account? Did you place your inheritance in your own checking account and then use some of it to make payments on a family vacation? Did your spouse ever put money in your checking account?

These are all examples of commingling that could lead these assets to be considered marital property. If you and your spouse aren’t able to negotiate a property division agreement and a judge has to weigh in, they could determine that your spouse is entitled to some of these assets –- and that you’re entitled to some of your spouse’s assets if they’ve been commingled.

How you can avoid commingling of assets in a new marriage

If you’re reading this because you’re planning to get married and want to be smart about protecting your assets, here are some ways you can avoid commingling:

  • Get a prenuptial agreement that lists assets that won’t be considered marital property in a divorce.
  • Keep records and documentation of significant assets that are purchased with separate property, such as your individual checking account or credit card.
  • If you receive a large inheritance or other gift, ensure that it’s never commingled in any way with your spouse’s funds or marital assets if you want to make sure you keep all of it.
  • Be aware of what constitutes commingling (like those examples above) and avoid it.

Whether you’re preparing for the beginning of your marriage or nearing the end, it’s important to understand commingling of assets. Since the majority of most couples’ assets are marital, in divorce, it’s typically up to a spouse to provide evidence that an asset is separate and not subject to division. An experienced family law attorney can answer your questions and provide valuable guidance.