Memphis, TN family law attorney Daniel Loyd Taylor talks about the difference between marital and non-marital property. He specifies that in divorce cases, the first step in dividing property is to distinguish between marital property and separate property. Broadly, there are three categories of separate property: assets owned prior to the marriage (if kept separate), property inherited during the marriage (if kept separate), and gifts received during the marriage (if kept separate). Once separate property is identified, the remaining assets form the marital estate, which is subject to division. Separate property itself is not divided.

He emphasizes, however, that maintaining separation is critical. Separate property can lose its status and become marital property through either commingling or transmutation. Commingling occurs when separate assets are mixed with marital assets to the point that they lose their distinct identity. For example, if someone entered the marriage with $50,000 in a savings account but later deposited it into a joint account with their spouse, and the account grew to $100,000, the original funds would no longer be distinguishable as separate property. In such a case, the separate funds would be considered commingled and thus part of the marital estate.