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When could property be both marital and separate?

On Behalf of | Aug 25, 2021 | Family Law

When the court divides property in a divorce, it must first label each item as marital or separate. The court only divides marital property.

According to the Virginia State Bar, some property may fall into both categories, which will introduce some complexities to the property division process. There are some common things that may become partial marital and separate property.


In general, anything you gain during the marriage is marital property, but income is tricky. Income you earn from work will be marital property, but if you earn income from a separate asset, it could become partially marital and partially separate. The mix occurs if you use that separate income to benefit you and your spouse.


If you own separate property and it increases in value during your marriage, the law may see that increase as marital property. A good example is a home you owned before marriage that you now use as a rental. As you build equity in the house, the court could say that equity belongs to both of you as marital property.


It is very common for separate property to become marital property because you commingle it with marital property. For example, separate income becomes marital property once you deposit it into your joint bank account.

Keep in mind determining the classification of assets is very difficult. You may not be able to figure it out on your own because of the various details involved in making the determination. Property division is one of the most complex parts of a divorce, and there is a lot of subjectivity the court may apply when determining what classification to give property.