Equitable Division of Marital Property

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What Is Marital Property?

Marital property refers to property that is accumulated by a couple during the course of their marriage. In a divorce setting, this type of property is also called “shared property” or “community property” depending on the jurisdiction. 

Marital property is usually contrasted with separate property, which is any property that is owned by one spouse independently (i.e., not jointly owned). This can refer to property that was obtained by one party before the marriage. 

It can also refer to property and assets acquired during the course of marriage, but that are specifically identified as separate and not shared property. An example of this is where one party receives a gift from a relative that is meant exclusively for them. 

What Is Separate Property?

The following are considered separate property and cannot be divided upon divorce:

For example, if one spouse receives a gift from a relative that is meant exclusively for that spouse, then that gift will be considered separate property.

Note that separate property can be turned into community property. Conversely, community property can be turned into separate property if the parties agree in a postnuptial agreement.

What Is “Equitable Division of Marital Property”?

In most cases, marital property is split evenly between the parties. That is, the total amount that the assets are worth may be simply calculated that split “down the line”, with each party receiving 50% of the martial property. 

In some areas, the court may apply principles of “equitable division” between the parties. This is the idea that the property should be divided in a way that is fair overall to each party. It uses a broader approach that considers various factors such as the parties’ financial needs and capabilities, medical needs, the person’s age, health, and the overall estate of each person. 

Thus, equitable division will aim to achieve a distribution of property that is somewhat more “intuitive” and less rigid than traditional separate property means. 

Is Equitable Division Necessary?

In some cases, a court may decide that it is necessary to apply equitable division principles. For instance, if one party has special needs, the court may award them ownership of certain property items in order to accommodate those needs (such as physical or medical needs, or alimony).

Similarly, if the marriage was a long one and one spouse served as homemaker while the other spouse earned income, the homemaker may require more assistance. The homemaking spouse might not have many opportunities to earn an income after spending years outside of the workforce.

However, in the majority of cases, equitable division is best seen as an option or an alternative rather than the default method for distribution. Also, some jurisdictions may not allow alternative methods, and will only apply the more traditional legal rulings. This can depend on the location of the claim, and may require the assistance of an attorney to determine which rules are applicable. 

Do I Need a Lawyer for Help with Marital Property Laws?

Most divorce and separation proceedings will require the assistance of a family lawyer. If you need legal assistance, you may wish to hire a qualified lawyer in your area. Your attorney can help you with your claim, and can research the laws in your area to see how your marital property rights may be affected.

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Last Modified: 04-14-2017 04:37 PM PDT

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