I cannot answer this question as it applies in all jurisdictions, but I can answer it as it applies in Utah, the jurisdiction where I am licensed to practice divorce law.
A married couple is, in many legal respects, considered to be one entity now. Not “him” and “her” anymore, but one. Thus, what one spouse earns is “ours” now, not just his or hers.
This means that, with the exception of property acquired by a spouse by gift or inheritance during the marriage (which I will cover below), property acquired during marriage—and that includes each spouse’s income generally (I say generally because there could be an argument made for some exceptions for passively acquired, as opposed to actively earned, income and exception in other rare circumstances) is not the solely and exclusively owned property of the wage earning spouse.
But if, after marriage, a spouse receives money or other property by way of a gift from someone other than his/her own spouse (such as from a friend or an extended family member) or receives money or other property by way of inheritance, that is treated as that spouse’s separate property unless and until he/she “commingles” that separate property with marital property. What is “commingling”?
When property that begins as one spouse’s separate property can loses its separate identity and becomes part of the marital estate, it is “commingled” with marital property and becomes marital property for purposes of property distribution in a divorce proceeding. Commingling—for divorce property division purposes—can occur in different ways.
A spouse can gift his/her separate property to the marriage, so that it goes from being “mine” to “ours”; where a spouse has contributed all or part of his/her separate property to the marital estate with the intent that it become joint property, that is commingling.
Another way commingling can occur is if a spouse’s separate property has been mixed in with marital assets to such a degree that it is no longer reasonably possible to distinguish between the separate and marital property.
Premarital property can also loses its separate identity and becomes a part of the marital estate if (1) the other spouse has by his or her efforts or expense contributed to the enhancement, maintenance, or protection of that property, thereby acquiring an equitable interest in it, or (2) the property has been consumed or its identity lost through commingling or exchanges or where the acquiring spouse has made a gift of an interest therein to the other spouse. (headnote to Oliekan v. Oliekan, 147 P.3d 464 (Utah Court of Appeals 2006), 2006 UT App 405, at ¶ 22)
Wages, salaries, and other earnings can be characterized and partitioned as separate property, however, by way of a prenuptial or postnuptial agreement.
Utah Family Law, LC | divorceutah.com | 801-466-9277
