Marital property refers to the property acquired during the course of a marriage that is shared between the two parties. Some spouses may choose to prevent their assets from becoming marital property by incorporating them into a prenuptial or postnuptial agreement. Real estate and other possessions including cars, boats, furniture, jewelry, and artwork are considered marital property when the married couple buys them together. In addition to bank accounts, retirement funds, and pensions, individual retirement accounts and lottery winnings can also be considered marital property if both spouses contributed to them.
In the nine community property states, all assets bought during a marriage are considered community property, regardless of who purchased them.
Property titles are not always relevant when it comes to marital property. Hence, just because one puts a certain property under their name does not mean it will be excluded as marital property.
Separate property, on the other hand, belongs to only one spouse. Some examples of separate property include gifts or inheritances acquired before or during a marriage, property that one owned before marriage, and property that the couple has agreed to keep separate according to prenuptial or postnuptial agreements.
Sometimes, a certain portion of separate property can become marital property. For instance, if a spouse made contributions that increased the value of another spouse’s separate property, a judge may decide that the asset should be regarded as marital property.
Once marital and separate properties have been determined, the marital property is allocated between each spouse based on the state’s property distribution laws.
The United States has 51 common law property states where assets acquired by one spouse during a marriage is considered separate property. These states follow the rule of equitable distribution. This means that the court divides marital property according to what is fair on a case by case basis. Therefore, equitable distribution does not necessarily indicate a 50/50 split. The judge will examine factors such as how long the marriage lasted, the spouses’ health conditions, prenuptial and postnuptial agreements, and each spouse’s debts and/or liabilities.
Conversely, the United States has nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. These states follow the principle that all assets acquired during a marriage, regardless of who makes the purchase, belong to both spouses. In these states, the marital property, known as community property, is owned by the spouses equally, following a 50/50 split. In any case, each spouse still keeps their own separate property.
Whether you live in a common law property state or a community property state, the division of marital property is a complex subject. What often makes this issue complicated is the fact that the court may not always call for a physical division of assets. In many cases, a judge may give each spouse a certain percentage of the total value of the property.
Family law attorneys with experience in the field can help protect your property rights after a divroce, and assist in navigating the issues that come along with distribution of marital property.