In just about every marriage, one or both spouses have assets and money prior to entering into marriage. Practical examples of this are checking and saving accounts that each person has as a single person before becoming married. Also, it is very common that both individuals are working people who earn a paycheck or own property and will continue to earn more money and acquire additional assets during the course of their marriage.
Unfortunately, some marriages end in divorce and if this happens dividing the money and assets of a married couple can sometimes become very complicated. This is particularly true if the money or assets that each individual came into the marriage with have been “commingled.”
Commingled Assets ~ “Commingling” occurs when one spouse who owns separate property prior to becoming married mixes it or combines it with the other spouse’s separate property. It can also occur when a spouses separate property is mixed or combines with the couple’s marital property which is property acquired during the marriage. A basic example of commingled assets is when you take your own money in a checking account and add it to a bank account holding money which belongs both to you and your spouse, the money is now commingled.
Separating Money ~ During a divorce, dividing the marital assets can be tricky and the only way to protect your money in a bank account so your spouse won’t get a share of that money is to “trace” the funds back to you. This will require detailed records including deposit and withdrawal slips, bank statements, direct deposit transactions, etc. This will show how much of the money actually belong to you.
State Laws ~ In Massachusetts, when it comes to property division, The Commonwealth follows the Equitable Distribution rules which will impact if and how you can keep your separate property. Equitable Distribution in Massachusetts applies when one spouse has separate property which is commingled or mixed with the other spouse’s property or with marital property. In this situation it is not possible to differentiate the separate property from the marital property. The separate property loses its separate property status and becomes subject to Equitable Distribution by the court.
Worth Your Consideration ~ Commingling and tracing property, money and other assets can get complicated, especially when there is a great amount of money and assets at stake. Whether you will be able to protect and keep your separate property after a divorce will have a major impact on the rest of life and starting over after such a difficult emotional experience. It may be worth considering asking your attorney prior to getting married if a prenuptial agreement or after marriage if a postnuptial agreement can protect your separate property. Also you may want to ask your attorney how you can change your joint bank account into separate accounts. It is important to keep in mind that marriage is not just about romance but it is also a legally binding contract and your attorney is willing to help you navigate this matter.