What Kind of Property is Still Separate After a Long Marriage?

A long-term marriage is typically categorized as one that is in excess of 20 years, with about 40% of couples reaching this milestone. Then, within a typical marriage, there are assets: marital property and non-marital property, which is also oftentimes referred to as joint property and individual or separate property. These are classifications of property that we use in family law cases when ascertaining the nature of the property. The subsets that also come into play are the types of property: there is real property, which is real estate, and there is personal property, which is usually possessions or personal effects such as clothing or jewelry. All of these terms are key in considering the nature of the property and then who is going to be allocated what in divorce proceedings.

Inheritance and Gifts

When we are discussing what kinds of property are still separate (or non-marital) property after a long-term marriage, we need to consider the nature and background of the property. For example, an inheritance is separate, non-marital property unless the person awarded the inheritance does not keep it separate, such as depositing funds into an individually owned and controlled account.  If the inheritance is rolled into a joint account, joint investment, or joint purchase, then it can and may be considered joint (marital) property. With nearly 25 years of experience in the matrimonial and family law field, I always say to be cautious and overly protective of these assets to ensure their individual, separate nature, as it was most likely intended in the inheritance in the first place. Another example is when a party is given a gift. Birthdays are a key example of a gift that was intended for one person, not the couple, and the same rules apply.

Tracing Non-Marital Assets Over Time

If you are unsure of the nature of the property, as so much time has passed, I always encourage parties to trace the asset over time. You need to go back to the beginning or initiation of the asset and determine how and when it was received, the value of the asset, the intention, and how it was handled from there. If you can trace that asset into a bank account, investment account, house, or something of value, then you should determine what its value was at that time and what the value is now. Keep working through the records from start to present day to trace the asset over time. An experienced family law attorney should be able to guide you through the process; otherwise, for more complex cases or assets, there are experts, such as forensic accountants, that can be retained as part of your divorce team.

Commingling Risks in Long-Term Marriages

As discussed above, commingling assets creates great risks of making that asset a marital, joint asset. The longer the asset has been commingled, the more likely it will be determined to be a marital, joint asset for equitable division between the parties. The bottom line is that a Judge can and will rule in this regard, if deemed necessary.

Burden of Proof in Classification Disputes

The burden of proof lies with the party attempting to claim a separate, non-marital asset. That is why the right family law team with the knowledge and expertise to help classify and clarify property is so important. Reach out to Jennifer Ward of Ward Family Law for a consultation today! Email: jward@wardfamilylawchicago.com