Separate & Community Property during Marriage
Learn who owns what property during marriage, including what is separate and community property.
1. Property ClassificationWith respect to married couples, there are two types of property: marital property and separate property.
Generally, marital property is everything that either of you earned or acquired during your marriage unless you agree otherwise. So, for example, money you earned at work, put in a joint checking account, and used to pay household bills is marital property. So is the car you bought and made payments on from that account.
Separate property belongs only to you or only to your spouse. There are some differences in how separate property is defined in different states, but the same general rules apply. The most common forms of separate property are:
property one spouse owned before the marriage
gifts received by one spouse before or during the marriage
property acquired during the marriage in one spouse's name and never used for the benefit of the other spouse or the marriage
inheritances received before or during the marriage
property that the spouses agree in writing is separate
property acquired by one spouse using separate property assets with the intention of keeping it separate, and
certain personal injury awards (in general, the portion of the award that repays you for lost earnings is marital property, while any award for pain and suffering is separate).
2. Types of Marital Property Ownership SystemsIn addition to learning the difference between marital and separate property, you must also figure out what property ownership system your state uses. Some states follow the common law system, and others the community property system -- which system your state uses determines what gets put into the marital property category.
Common Law States
Most states, except those listed as community property states below, use the "common law" system of property ownership. In these states, it's usually easy to tell which spouse owns what. If only your name is on the deed, registration document, or other title paper, it's yours. If you and your spouse both have your name on the title, you each own a half interest in the property unless the title document says otherwise. If an item doesn't have a title document, generally you own it if you paid for it or received it as a gift.
Community Property States (Arizona is a Community Property State)
If you live in a community property state, the rules are more complicated. But in general:
- Spouses own equally almost all property either one acquires during the marriage, regardless of whose name the property is in
- Half of each spouse's income is owned by the other spouse during the marriage, and
debts incurred during marriage are generally debts of the couple.
In community property states, the following is separate property:
- gifts given to one spouse
- property either spouse owned before the marriage and kept separate during the marriage, and
The community property states are: Alaska (by agreement), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. (In Alaska, spouses can sign an agreement making specific assets community property.)