Dual classification is used in 29 states to define separate and marital property. In these states, the parties must determine when an asset was acquired to determine if it was acquired during the marriage and therefore subject to distribution in a divorce. Generally, separate property in these jurisdictions is immune from distribution.

By comparison, the so-called Kitchen Sink states -- Connecticut, Indiana, Kansas, Massachusetts, Michigan, Montana, New Hampshire, North and South Dakota, Oregon, Vermont, Washington and Wyoming -- include separate property in the marital estate subject to distribution. Eight other states -- Alabama, Alaska, Arkansas, Hawaii, Iowa, Minnesota, Ohio and Wisconsin -- do so if there is a situation of need by the nontitled spouse.

Neither dual classification nor all property definitions are as simple as they sound. For example, if Ginny received 100 shares of XYZ company as a gift before she married John, a portion of the passive appreciation of that stock may be subject to distribution even though the gift itself is her separate property. In addition, the commingling of assets at times makes the circumstances of acquisition difficult to determine. Moreover, a situation of need gives the courts judicial discretion in making a fair and reasonable distribution of property.

Once again, good legal advice is a wise idea.

See also Kitchen Sink States; Equitable Distribution; Community Property; Separate Property.

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1. Separate Vs. Marital Property
   In general, separate property is what a spouse brought to the marriage, inherited or received as a gift during the marriage. Marital property is everything the couple acquired during the marriage regardless of whose name is on it.
   Contributed on 7/3/2007 by: DivorceDex.com Staff

   Category: Property Division   (Applicable in All States)

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