Ownership of Property
Many states divide property, including bank accounts, into two categories: marital property and separate property. Marital property, also called joint property, is generally divisible by the court in your divorce decree while separate property is not. With certain exceptions, property acquired by either spouse during the marriage is considered marital property. Typically, separate property is property a spouse had before the marriage, along with property acquired by gift or inheritance whether or not it was acquired during the marriage. Thus, your bank account could be considered as either separate or marital property depending on the source of the money in the account.
Even if property starts out a separate property, it can lose its separate status if it is commingled -- or mixed -- with marital property. For example, if you receive an inheritance that is considered separate property, but then deposit the money into the same bank account where you and your spouse deposit your paychecks and from which you pay your household bills, you have commingled that inheritance. Over time, the inheritance money loses its status as separate property because it becomes indistinguishable from the marital property in the remainder of the bank account. This can occur in either an individual or joint account since it is the character of the money in the account, rather than the names on the account, that determines whether money is commingled.
Depending on the circumstances, your state may presume that all of your property is marital property unless you can prove otherwise. To do this, you must be able to trace the property back to its original source of separate property, thereby proving it should be excluded from marital property - in whole or in part. For example, if you deposited marital funds into your individual account, the court will likely treat the account as marital property even though it only has your name on it. However, your state’s laws may allow you to trace the money in your individual bank account to determine whether it is marital or separate property and by how much.
While definitions of marital property and separate property are similar between states, property distribution can differ depending on whether your state follows a community property model or an equitable distribution model. If you live in a “community property” state, the court will divide your marital property equally between you and your spouse. However, if you live in an “equitable distribution” state, marital property will be divided in a fair and equitable manner, but not necessarily equally. The court looks at various factors such as the length of the marriage and each spouse’s contributions to the marriage when making its distribution decision.