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What is Marital Property?

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What Is Marital Property?

Marital property refers to any assets or funds that were obtained during the course of marriage. These will usually be valuated and split evenly between the spouses in the event of a divorce or legal separation.  States can often have very different laws for how to define and calculate marital property amounts.

Also, marital property can also be called by other terms, including shared property or community property. Again, the exact definitions of these specific terms can vary depending on the state laws that are being applied.

How Is Marital Property Treated During Separation or Divorce?

Marital property is generally divided equally between the parties.  This can include items such as homes, cars, bank account contents, and securities. Any property that isn’t classified as marital property is usually called separate property. This will be owned in full by the owning spouse after the divorce.  Thus, it can make a major difference whether property is defined as marital or separate property.

What Is Separate Property?

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

  • Property obtained before marriage
  • Property acquired after marriage
  • Property received as a gift or inheritance during marriage
  • Any properties the spouses agree are separate property in prenuptial agreements.

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 Are Some Common Legal Disputes over Marital Property?

Not all divorce proceedings are straight-forward.  Some legal disputes over marital property include:

  • Hidden assets (i.e., not declaring ownership of certain items, to avoid the division with the other party)
  • Property improvements by one spouse: it can be difficult to tell whether one party should be reimbursed if they made property improvements without contributions from one spouse
  • Commingling separate property together: When spouses mix separate property together, such as separate income into a joint account, dividing the account can be difficult.
  • Disagreement over intent: Spouses are allowed to agree to turn community property into separate property, but that raises other issues. If one spouse gives the other spouse a gift, is the gift separate property or was the gift conditioned on the marriage’s existence?
  • Increases in property value: Some, but not all jurisdictions treat increases in marital property value as a divisible asset itself, which the parties will have to share
  • State laws: Each jurisdiction may have different rules that can affect the portion that each person will be receiving as a result of the divorce process

These types of disputes can be complicated and may require the intervention of legal profession for proper handling.

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

Most divorce and separation proceedings will require the assistance of a lawyer. If you need legal assistance, you may wish to hire a family 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.

Photo of page author Jason Cheung

, LegalMatch Legal Writer

Last Modified: 05-06-2015 11:19 AM PDT

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