FAQs About Property And Divorce
What is “Marital Property?”
Many times, marital property is everything that was acquired or earned during the time of
a marriage, unless you are your spouse agreed otherwise.
On what basis does the court decide how marital property is divided?
The court looks at how both the marital property and non-marital/separate property was acquired, the preservation of the property, and the increase or decrease in value by each person. This includes the contribution of the spouse who is a homemaker. The value of each piece of property is assigned a monetary value. Then the property is divided into marital and non-marital/separate. The marital property is divided up as to close to equal as it can be.
However, economic circumstances and custody of the children do play a part in the dividing up marital property. This could mean that one spouse ends up with more, due to needing certain items for the children. Houses and cars will be many times are awarded to the spouse that needs them more. The court can also award the right to use or live at the property for a reasonable amount of time.
Pre-nuptial agreements and post-nuptial agreements will also be used to divide the property between the spouses.
What is “separate property?”
Separate property is also known as non-marital property. This is simply the property that belongs to one spouse. Every area is different on how it defines separate property, but there are some general rules.
Separate property is the property owned before the marriage, a gift that was received by one spouse, an inheritance, or property that was acquired by one spouse using outside marital assets that the intentions were to keep separate.
As each area has its own rules about separate property, it is difficult to know which items is separate property.
Is the “separate property” of one spouse subject to be divided up through equitable distribution?
This will depend on the case. Let’s say a spouse owned a house before getting married, and during the marriage shared money went into the house to improve it. If the value of the house was to increase from the money that was used for the improvements, the difference between the original value and the new value would be divided in the distribution part of the case. And this does not only apply to money put into the work on the property, but also the work. For most cases, it is because the work on the property took away time from the marriage.
In other cases, the separate property would affect the dividing of the property if there is economic need or children involved. The separate property would not be given to the other spouse, but the marital property would be used to try to balance out what the other spouse has.
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