Property

TRANSMUTATION OF NONMARITAL PROPERTY

In certain circumstances, nonmarital property may be transmuted or transformed into marital property during the marriage. Property, nonmarital at the time of its acquisition, may be transmuted if:

1. It becomes so commingled with marital property as to be untraceable;
2. It is title jointly; or
3. It is utilized by the parties in support of the marriage or in some other manner so as to evidence an intent by the parties to make it marital property.

As a general rule, transmutation is a matter of intent to be gleaned from the facts of each case. The spouse claiming transmutation must produce objective evidence showing that. During the marriage, the parties themselves regarded the property as the common property of the marriage. Such evidence may include placing the property in joint names, transferring the property to the other spouse as a gift, using the property exclusively for marital purposes, commingling the property with the marital property, using marital funds to build equity in the property, or exchanging the property for marital property. The mere use of separate property to support the marriage, without some additional evidence if intent to treat it as property of the marriage, is not sufficient to establish transmutation.

Mere use if the income from the nonmarital property for marital purposes does not cause the investment to lose its nonmarital nature. For example, the interest from nonmarital bonds may be used for marital purpose without changing the nonmarital nature of the bonds. Dividends from nonmarital stocks may be used in support of the marriage without bringing about transmutation of the stocks. The use of rental income from nonmarital real estate in support of the marriage will not transmute the real estate. In all of these cases, however, their may or may not be some evidence besides the mere use of income, which would indicate an intent to transmute. Intent seems to be the key element, not a secret or subjective intent, but an objective intent manifested by action and words.

Frequently, where property originally nonmarital in nature becomes transmuted to marital property, the courts will apply a different percentage than would otherwise be applied, thus restoring to the contributing spouse something to compensate him or her for the contribution to the marital estate of property which was formerly nonmarital. In other word, sometimes the issue of transmutation-or-not is not an important issue. On the other hand, sometimes it is. Wannamaker v. Wannamaker, 406 S.E.2d 180 (Ct. App.1991). See also, Johnson v. Johnson 372 S.E.2d 107 (Ct. App. 1988).

This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem.