What’s Yours and What’s Mine: Understanding Commingled Marital Assets

In many divorces, one of the most common areas of contention is the division of assets.  Whether discussing property, savings, or even debt, this step can be stressful and emotionally-charged, especially if either of the parties are entering into the discussion with unrealistic expectations.  Therefore, understanding the concepts of marital property, separate property, and commingled property is important.

Marital Property

Marital property is defined as any real or personal property, assets, and income acquired by the spouses during the course of the marriage. Moore v. Moore, 249 Ga. 27 (1982).  This property does not have to be held in the names of both spouses to be considered marital; it is often dependent on the circumstances and timing of its acquisition.

Separate Property

Separate property is defined as the pre-marital property of one spouse or property acquired by one spouse by gift, inheritance, bequest, or devise.  Payson v. Payson, 274 Ga. 231 (2001); Bailey v. Bailey, 250 Ga. 15 (1982).  Additionally, if separate property or income earned from separate property is used to purchase items or new assets, it may also be considered separate property.  Separate property is not subject to equitable division.

Commingled Property

Commingled property is the result of one spouse mixing his or her separate property with the separate property of the other partner or with the couple’s marital property.  While this can often happen in a planned circumstance, such as converting the deed on a pre-marital home to include the names of both spouses, it can also happen without realizing the shift is taking place.  For example, if one spouse has a savings account that is separate property, but allows the other spouse to make deposits into it, it may be considered commingled property.

The Process of Dividing Assets

Georgia Law requires an equitable division of assets, meaning that during a divorce, the property must be divided fairly, but not necessarily equally.  The lines between marital and separate property are commonly blurred, but there is case law to assist in the classification of property that needs to be divided. Division of assets during a divorce can be complicated and requires expert guidance from professionals with an established history of success. At Andersen, Tate & Carr, our attorneys are dedicated to reaching the best possible outcome for our clients. Our criminal defense attorneys, Patrick McDonough and Trinity Hundredmark, have combined experience of more than 30 years representing clients facing criminal charges in Georgia. For more information, or to request a case evaluation, contact our law office at 1-770-822-0900.