Divorces are famous for ugly property rights disputes, but these problems are usually related to splitting up the assets that were acquired during a marriage. But what about the property that is considered non-marital property, be it brought into the marriage or something obtained during the marriage that only one partner has rights to?
Non-marital property is usually an asset belonging to one partner or the other prior to the marriage. If one partner wants to protect this property from coming into question later, the best possible way to do this is by creating a prenuptial agreement outlining to whom each piece of property belongs in case of divorce. But, we realize this is not often the case, as many people believe the marriage will last forever and there is no need for such an agreement.
Before getting into an argument with your soon-to-be ex, it would be much wiser to consult with a family lawyer specializing in divorce to discuss marital property in divorce. He or she will be able to give you a much better idea as to what property is definitely considered marital property as well as the property that you may be able to classify as non-marital property.
There is a common misconception that all property and assets in a marriage are considered marital property, regardless of when it was purchased or obtained. That is just not the case, though. For instance, you may have had a 50″ TV prior to the wedding and decided to add that to the home instead of buying a TV for the home you now share with your spouse. Even though this piece of property is now comingling with marital property, it is in fact considered non-marital property. Not all cases are this simple, though.
Something that would be a bit more complex would be where a monetary gift was given to one of the partner’s while married. Now, while the gift itself is considered non-marital property, any gains on that “gift” could be considered marital property. For instance, the funds are incorporated into a joint 401(k). The earnings on that money are now considered a joint asset.
As you can see, separating marital from non-marital property in divorce can be complicated and confusing. If you are expecting the divorce to be difficult and unable to part ways amicably, hiring a divorce attorney would be a very wise decision. He or she will be able to better guide you through the process as well as being able to help you categorize your assets to ensure that you are able to keep assets that are rightfully yours in divorce.