Division of Property in a Divorce

In a divorce, the court is required to make a “just and equitable division of the marital property” of the parties without regard to marital misconduct. Although this does not require the court to split the parties’ marital property 50/50, in practice most courts will do so. Marital misconduct such as domestic abuse or adultery cannot be considered by the court in dividing property.Marital vs Non-marital PropertyMarital property is all real property and personal property, including vested pension plan benefits, acquired by either spouse during the marriage. Regardless of how title to the property is held, all property acquired by either spouse during the marriage is presumed to be marital.Each party is entitled to keep his or her own “nonmarital” property. Nonmarital property includes all real property and personal property which is acquired before the marriage, is excluded by valid antenuptial (prenuptial) contract, or is acquired as a gift, bequest, devise, or inheritance made by a third party to one spouse but not the other spouse. Because non-marital property includes property acquired before the marriage, getting married does not give your spouse a claim to your previously-owned property, which is a common misconception.Since all property acquired by either spouse during the marriage is presumed to be marital property, the spouse claiming that an item of property is nonmarital must show by a preponderance of the evidence (more likely than not) that the item is non-marital. In determining whether a gift was made to one spouse but not the other, the most important factor is the donor’s intent. An example of this is when an inheritance by one spouse is deposited into the parties’ regularly used joint checking account.Other Division of Property ConsiderationsThere are a few other things to note. One, in addition to dividing property, the court may order that the parties’ marital property be sold if the court finds it is necessary to preserve the parties’ assets. For example, when neither party can afford to pay the cost of the parties’ home on his or her own, the court may order the home to be sold. Two, if the court finds a spouse’s resources or portion of marital property are so inadequate as to work an unfair hardship, the court may divide up to one-half of nonmarital property to prevent the unfair hardship. In practice, however, such an action by the court is rare. Three, the parties cannot dispose of marital assets in contemplation of or during a divorce proceeding except in the usual course of business or for necessities. A party intending to file for divorce may open an individual bank account with marital funds or remove marital property from the home before filing for divorce. Such actions can be taken into consideration by the court when dividing property. Lastly, the appreciation in value of nonmarital property is considered to be marital property if it was the result of marital funds or efforts. An example would be a lakehome owned by a party before the marriage that is then remodeled with the parties’ joint funds or labor. The increase in value to the property as a result of these joint actions is considered to be marital property.Such as with child custody, child support, and spousal maintenance issues, determining what type of property is in question can be one of the many potentially complicated issues in a divorce. As a result, it is important to have an experienced family law attorney represent you in a divorce proceeding.

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