Yours, Mine, Ours: What’s Separate in a Marriage?

There are very few things in a marriage that are truly “separate.” Even if you have separate bank accounts or credit cards, if you’re married, those things will probably be considered as joint assets or liabilities.

In Virginia, at least, what is defined as marital or separate property really has nothing to do with the actual “title.” For a bank account, it doesn’t matter if it’s your name or his—if the money going into it was earned during the marriage, it’s a marital account and is subject to division. If, on the other hand, the money in it was money that you earned prior to the marriage, or inherited prior to or even during the marriage, then the money is still separate. To determine whether money is separate or marital, you have to look directly to the source of that money.

Lately, I’ve seen a lot of women who have elected to keep separate credit cards from their husband, usually because one or the other is worse at managing money. Again, with debt, it doesn’t really matter whose name the debt is in. Let me re-phrase that a little. For the credit card company, it does matter whose name the debt is in. As a married woman, however, you could be liable for your husband’s debt, because the court CAN order that you be responsible for part of any joint debt. How do you determine whether credit card debt is marital debt or separate debt? You have to look at how the money was spent. If he has spent a bunch of extra money entertaining his new girlfriend, the court probably won’t order that you be responsible for a part of this debt. If, on the other hand, he has spent the money maintaining the household and taking care of the children, the court probably will find that this is joint debt. You could still try to make an argument to the court for why your separate debt should be handled separately, but there is a good chance that the judge would order that you are responsible for it, too.

Keeping things separate may sound like a good way to help protect yourself in the event of divorce, but usually the court will find anything earned or acquired during the marriage to be a marital asset or liability, and will divide these things “equitably” among the parties. Usually, title alone is not sufficient to prove that the asset or liability truly is separate.

If you’re counting on your “separate” accounts to help keep things separate during divorce, you’re probably being overly optimistic. Still, if worst comes to worst, you can always make an argument to the judge regarding the reasoning behind your separate accounts, and if you’re negotiating a separation agreement, you can include a provision that each party keeps the debts listed in his or her name.

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