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Separate property: when it may be eligible for distribution

If you are getting divorced, one of your primary concerns about the process is what will happen to all your assets. After all, ending a marriage will require that you and your soon-to-be ex divide up the properties, money and even the debts you have accumulated during the marriage, and this can be a troubling thought.

However, in Massachusetts, property is divided in a way that is deemed equitable, or fair. You should also understand that only marital property is eligible for distribution; your separate property and your ex's separate property will generally be kept by the owner. Having said that, you need to understand that separate property can become marital property.

Let's imagine you are the person with separate property, like an inheritance. You might have had it before you were ever married or you alone might have received it during the marriage, which would still make it separate property.

If you never use these funds, if you use them to pay off your own debt or if you keep them in a separate account that is used only for non-marital expenses, it is likely that the inheritance and anything you have purchased with those funds will be considered separate in the event of a divorce.

But if you use that money to pay off your spouse's debt or buy your marital home, or if you deposit it into an account you share with your spouse, it may no longer be considered separate. This means that the money and anything purchased with it could then be eligible for distribution.

Determining what is separate and marital property can be one of the most frustrating and complicated aspects of the divorce process. Rather than make a costly mistake or assumption regarding separate property, it can be crucial to discuss your financial situation with your attorney. Doing so can help you plan ahead and protect yourself and your finances.

Source:, "Managing Marital Property - Do's and Don'ts," accessed on March 11, 2016

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