ABA Family Legal Guide

Family Law

Money Matters During Marriage

Ownership of Property

Which spouse owns what property in a marriage?

Most property that is acquired during the marriage is considered marital or community property. If one or both spouses buys a house or establishes a business during the marriage, that property will usually be considered marital property, particularly if the house or the business is purchased with the husband's and wife's earnings obtained during marriage.

Separate property is property that each spouse owned before the marriage. In most states, separate property also includes inheritances and gifts (except perhaps gifts between spouses) acquired during marriage. During the marriage (and afterward), each spouse usually keeps control of his or her separate property. Each spouse may buy, sell, and borrow money on his or her separate property. Income earned from separate property, such as interest, dividends, or rent, is generally separate property. However, in some states, these profits may become marital property.

Separate property can become marital property if it is mixed or commingled with marital property. If, for example, a wife owned an apartment building before the marriage and she deposited rent checks into a joint checking account, the rent money probably would become marital property, although the building is likely to remain the wife's separate property as long as she kept it in her name. If the wife changed the title on the building from her name alone to the names of both herself and her husband, that would probably convert the building into marital property. In addition, if one spouse put a great deal of work into the other spouse's separate property, that could convert the separate property into marital property, or it could give the spouse who contributed the work a right to some form of repayment for the work performed.