What’s Nonmarital vs. Marital Property?

Divorce and property can both be ugly topics, especially when a couple is not parting amicably. Marriage carries legal implications for property and couples should be aware of how property is treated during divorce. Though every couple hopes their union lasts forever, there may come a day when division of property is required due to a divorce filing. Knowing what to expect makes the process less of a shock, and that is what an attorney can do for you.

During a divorce, property owned by a spouse prior to entering the marriage, which is called nonmarital property, can remain the property of its original owner. However, almost every item acquired after the wedding may be subject to division if divorce occurs. This second type of property is called marital property and there are complex methods for handling it, based on the state of residence.

In community property states, marital property is defined as separate or community property. Community property is all items accumulated during the marriage unless they are designated otherwise, such as a loan in the name of one person who holds separate property. Community property is usually divided evenly, while the person owning separate property acquired before the marriage, inheritance, pension proceeds, court awards, and gifts may retain these items.

Equitable distribution states rely on a judge to determine a fair division of property. Each person typically receives a percentage of the total value of the marital estate. If property is purchased with comingled funds, the court is likely to deem this community property. Therefore, a spouse should make an effort to keep any desired property separate during the marriage or it may become commingled and considered community property during a divorce. This pertains not only to items like homes but also to businesses established prior to a marriage but sustained by the union.

Who gets the house is usually a big question. The answer is based on the circumstances. If children are involved, the parent who will be doing most of the child-rearing is usually entitled to keep the marital home. If children are not involved, the court will make a decision based on the property system within the state.

A lawyer for marital property can simplify the complex topic of property division during divorce. This legal professional ensures that decisions made regarding division of property are fair for the client. When an attorney is involved, divorce and property issues can be simplified to the point that they do not cause ill-will between the couple.

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About the Author
Nicholas Baker is a practicing family law attorney with over a decade of experience handling divorce, child custody, child support, and domestic violence matters in the courtroom. Attorney Nicholas Baker believes in providing family law information for individuals so that they can make an informed decision about their own family law matter.

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