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How separate property can become marital

Massachusetts is an equitable division state. This means that, in a divorce, courts apportion marital property between the spouses in a way they consider most fair under the circumstances.

Certain types of property may remain separate throughout the marriage and continue to belong solely to one spouse. In Massachusetts, separate property may still be part of the distribution.


However, under some circumstances, property that starts out separate can end up as marital property. This process is transmutation. Sometimes, only part of the separate property transmutes, adding even more complexity to the division process.

Defining separate property

In Massachusetts, separate property is property you owned before the marriage or acquired by gift or inheritance from a person other than your spouse.

Joint title to real estate

One way to transmute separate property into marital is by transferring the title to both spouses. In particular, real property with both spouses as tenants by the entirety generally counts as marital property. To separate it out again, you would need to prove you did not intend to make a gift of the property to the marital estate by transferring the title.

Commingling funds

Another way separate property changes into marital is when its owner commingles it with marital property to the extent that later on he or she has difficulty tracing it back to its separate origins. For example, simply depositing your inheritance into a joint account will not necessarily render it marital property. However, a few years later, you may not be able to claim with any certainty that the funds in that account now represent the specific inheritance funds you deposited earlier. Keeping your separate property separate and retaining proof of its origin is generally a good course of action if you want to argue against assigning any part of it to your spouse.

Contribution to value

A spouse may also have a share in separate property if he or she contributes to increasing its value. A common instance occurs when one spouse owns a business prior to marriage. After the marriage, the other spouse invests labor or money to develop it. An expert evaluation may be necessary to assess the value of the spouse's input and his or her resulting interest in the asset.

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