If a property is acquired by either spouse during the marriage, it is considered marital property unless it was acquired by way of gift, inheritance or excluded pursuant to a valid prenuptial agreement. This type of property is divided between the spouses.
Separate property, on the other hand, includes any property that was received by either spouse as a gift or inheritance as well as any property that was owned before the marriage. This property must be kept separate from marital property in order to remain classified as separate property. Separate property is not divided by the Court in a divorce except in cases where there has been an increase in value during the marriage. Any increase in the value of separate property is considered to be marital property.
What happens if an asset is "not property"
In certain cases where a party has an interest in a discretionary trust as a beneficiary, the interest is not property. In that case the interest cannot be awarded to the spouse. It may however be an economic circumstance that the court will take into account in equitably dividing other marital assets or awarding maintenance.
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