In general, both spouses have claims to certain types of property that either spouse acquires during the marriage. You might assume that "during the marriage" means right up until a couple gets divorced. But that's not true in all states.
This article will help you understand how spouses own property, how their property is divided in divorce, and the most common dates when the property they acquire will belong to each of them separately: the separation date, the filing date, key dates in the divorce process, and the date the divorce becomes final.
With a few exceptions, "marital property" is anything that you or your spouse earned or acquired during your marriage. "Separate property" belongs to only one spouse and typically includes property that spouse owned before marriage, received as a gift during marriage, or inherited during the marriage.
States use one of two different systems to divide spouses' property during divorce:
It's important to note that in most states, couples may enter into legally binding prenuptial or postnuptial agreements to deviate from a state's general rules about property ownership or division. They may also reach an agreement on when the property that a spouse acquires or earns will be separate rather than marital property. A local family law lawyer can help you write an agreement about property ownership and division that would be effective in your state.
Regardless of which system a state uses to divide property in a divorce, the judge must determine a point in time when income earned or property acquired by one spouse is no longer considered marital property.
All states' laws are different, but most often property acquired by one spouse becomes their separate property when:
In states that use the separation date as the cutoff, property or income that a spouse acquires or earns after the date of separation is that spouse's separate property.
The specific definition of the "date of separation" varies from state to state. Most often, it's the date that spouses no longer live together as a married couple, or the date that at least one of the parties intends that the separation be permanent.
No longer living together as a married couple doesn't necessarily require living in different residences. In California, for instance, the date of separation means the date when there's been "a complete and final break in the marital relationship." To show that has happened, one spouse must have communicated to the other spouse an intent to end the marriage and must have acted in a way that's consistent with that intention. (Cal. Fam. Code § 70 (2023).)
When spouses don't immediately move out—even though they plan to end the relationship—judges may look at other circumstances to determine whether they intended that the separation be permanent. For example, a judge might consider evidence demonstrating when a spouse moved into a separate room in the house. Or, if there wasn't any previous evidence of an intent to separate, the judge might use the date that the spouse filed for divorce.
Similarly, when one spouse moves out but hasn't decided to get divorced, the judge will look for other evidence of when the couple actually intended to split, such as the date a spouse hires an attorney, communicates to the other spouse an intent to divorce, or actually files for divorce.
Many states begin classifying property and income as separate property as of the date when one spouse files for divorce or serves the other spouse with the divorce papers. A benefit of this approach is that it's clear cut—there's usually little to dispute about either of these dates, because they're part of the official court record.
Some of the states that use the start of the legal divorce process as the marker also allow for alternative dates. For example, in Florida, the cut-off date is the earliest of the filing date, the date when the parties enter into a valid separation agreement, or another date that is expressly established in an agreement between the parties. (Fla. Stat. § 61.075(7) (2023).)
In some states, property that spouses acquire will be considered marital property up until a certain milestone is reached in the divorce proceedings, such as:
Many of these statutes also allow judges to use different cut-off dates that would be fair under the circumstances.
Some states consider property acquired by a spouse to be marital property up until the date of the divorce. For example, in Wisconsin, property acquired during the marriage is considered marital up until the date of divorce, unless there's a good reason to deviate from the rule. (Wis. Stat. § 767.61; Brandt v. Brandt, 427 N.W. 2d 126 (Wis. App. 1988).)
If the laws in your state don't specify the cut-off date when property acquired during the marriage is separate rather than marital, there will usually be court opinions ("case law," in legalese) on the issue. In the absence of a different date in the statutes, many courts—but not all—will find that the cut-off date is the date the divorce is final. Judges will decide based on how appellate courts have decided in other cases, as well as the specific facts in the case.
Even if your state has a law clearly stating when property acquired during the marriage is no longer considered marital property, it's important to seek advice from a local attorney if you and your spouse can't come to an agreement on how you'll divide your property. That's because many statutes have exceptions to the general rule, and judges often may decide based on what they believe is fair and equitable under the circumstances of the case.
Another reason to seek help from an attorney is that the facts of your case might be unclear. For example, in a state that goes by the separation date, you and your spouse might disagree about when you actually separated. An experienced divorce lawyer can provide in-depth information about how judges in your state tend to rule in similar situations.
The best way to avoid uncertainty in how property will be divided in your divorce is to reach an agreement with your spouse rather than leave it up to a judge to decide. When you have a complete settlement agreement before you start the divorce process, you'll be able to take advantage of the cost and time savings of an uncontested divorce. But if you're still hashing things out with your spouse, you might find that working with a divorce mediator—either in person or online—can help you reach agreement and reduce the overall time and money you spend fighting in court.