How Does The Court Determine If Property is Marital Or Non-Marital Property?

Do you know how the court will handle your property during divorce?

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What is Marital Property and How is it Divided During Divorce?


The courts have no authority over non-marital property. So, the first thing the court has to do is determine whether they have authority over marital property. Generally speaking, all property acquired by either spouse before the marriage is considered non-marital property. All property acquired after the marriage is considered property of the marriage or marital property.

If the property is marital property then the court must “equitably” divide the property.

If you wish to keep separate, your property from your spouse's property safeguards should be put into place to make sure that each retains ownership of their individual property. For example, if you own a home and marry, the only way to keep that home from becoming marital property is to make sure your spouse makes no financial investment in the home. 


Property Is Presumed To Be Marital Property Except For:


  • Property acquired by gift, legacy or descent.
  • Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.
  • Property acquired by a spouse after a Judgment of Legal Separation.
  • Property excluded by valid agreement of the parties.
  • Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
  • Property acquired before the marriage.

    When marital and non-marital property has been combined the process of determining marital property can be quite complicated. For example, what happens when one spouse uses non-marital property such as an inheritance to buy a house with the other spouse? What happens when one spouse inherits money and that money is put in a joint bank account?

    In such situations, that property becomes marital property. Once any non-marital property is used to benefit both spouses or, co-mingled in an account in both spouse's names it becomes marital property and is will be equitably split between the spouses during divorce. 

    If a court decides that property is marital property then the court must determine how to “equitably” split the property. State divorce laws differ on the meaning of “equitable” and most states do not consider “equitable” to mean equal.


    When Dividing Marital Property The Courts Consider The Following:


    • The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit.
    • The dissipation by each spouse of the marital or non-marital property.
    • The value of the property assigned to each spouse.
    • The duration of the marriage.
    • The economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live in the home for a reasonable period, to the spouse having custody of the children.
    • Any obligation and rights arising from a prior marriage of either party.
    • Any post-nuptial agreement of the parties.
    • The age, health, occupation, amount and sources of income, vocational skills, marketable skills, estate, liabilities, and needs of each of the parties.
    • The custodial needs of any children.
    • The reasonable opportunity of each spouse for future acquisition of capital assets and income, the tax consequences of the property division upon the respective economic circumstances of the parties.

    It is important that you hire an attorney who is familiar with your state’s laws and how your particular court jurisdiction normally handles property distribution in order to help you resolve this very complicated issue.