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Property division: keeping separate assets separate -- the don'ts

Last week on this blog, we discussed how couples in Virginia who are about to be wed, or are already married, can keep separate property from becoming marital property. Keep in mind that marital property is considered to be owned by each spouse and thus is included in the divisible estate should the couple divorce. This is very important, since both spouses in a divorce have a vested interest in seeing that the property division process is fair and appropriate. Last week we discussed the "do's" of keeping separate assets separate. This week we will discuss the "don'ts" of keeping separate assets separate.

First, spouses should not use separate funds to pay debts acquired during the course of the marriage. Doing so could be considered comingling, transforming those separate funds to marital funds. Similarly, spouses should not deposit their earnings made while married into a separate account. Income earned while the couple is married in general is deemed to be marital property. Placing those funds in a separate account commingles them, meaning the separate account now considered to be marital.

Also, spouses should understand that even if they were the sole owner of an asset before they got married, part of that asset could be considered marital property. This happens when a separate asset appreciates over the course of the marriage due to the efforts of the parties to perform upkeep or in some other way make an improvement to the asset. The appreciated portion of the asset may be considered marital property. This applies not just to assets like homes or stock portfolios, but also to businesses.

In the end, if a spouse wants to keep separate assets separate from marital assets, it may help for them to speak to a professional. With the right help, a spouse can take the steps necessary to ensure that they retain their separate property in the event of a divorce.

Source:, "Managing Marital Property: Do's and Don'ts," accessed on Jan. 29, 2018

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