When it comes to marriage and divorce, the word "individual" loses much of its meaning. Courts rarely care how an asset is titled, or which spouse's name is on a savings account. They do care about how the account originated, however, and what happened with it after it was established.
Separate Vs. Marital Property
In divorce, all assets fall into one of two categories: Your savings account is either your separate property or it's marital property. It's separate property if you opened it before you got married, if someone gave the money specifically to you, or if you inherited the funds. Otherwise, if you opened it during the marriage and regularly contributed to it, it's marital property even if only your name is on the account. Separate property typically isn't divisible in a divorce. Marital property is.
When it comes to liquid assets such as savings accounts, the lines between separate and marital property can blur, even if you opened the account before you married. For example, you might have have made a few deposits during your marriage, even though the account was originally your separate property. In legal terms, you've "commingled" the account. Generally, the balance as of the time of your marriage is your separate property, but the remainder is marital money. In a divorce, you would have the right to retain your separate portion, but a court will divide the remainder between you and your spouse. In most states, the burden of proof is on you to prove that there was a balance in the account when you married – your premarital property – and how much it was.
Even if you never commingled your separate savings account, any interest it's earned over the years might be an issue. These laws can vary from state to state, but in some jurisdictions, marital property includes appreciation of premarital or separate assets. In this case, your challenge becomes to identify the original balance at the time you married and separate out any growth since that time. The growth may be divisible in a divorce.
If you opened a savings account during your marriage, it's technically a joint account. even if it's in your name alone. Your spouse gets a portion of it. How much may depend on whether you live in a community property state or an equitable distribution state. If you live in a community property state, it's usually 50 percent. In other states, property division is left to the discretion of a judge and the split might be more unequal depending on the circumstances involved in your particular situation. If your divorce is amicable, your spouse can take a share you've agreed on and that will be that. Otherwise, a court will have to decide the division for you. If you spend the money before the divorce is final, the account is typically charged to your share of assets in overall property division. You'll have to reimburse your spouse for a portion of its balance, either with a cash payment or by giving her another marital asset.
- Bedrock Divorce Advisors: The Difference Between Separate and Marital Property
- DivorceNet: Handling Joint Accounts in Your New Jersey Divorce
- WomansDivorce: Divorce Bank Account Questions
- The Law Firm of Thurman W. Arnold III: What Are Tracings in California Divorce Proceedings? Tossed Salad and Mixed Vegetables!
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