What’s the Difference Between Marital and NonMarital Property?

Marital and Nonmarital PropertyWhen getting divorced, there is a huge difference between marital and nonmarital property. Legal bonds of marriage extend to property and debt. When two people are legally married, income and debt are shared. This usually is not an issue until the couple decides to divorce. Property division in divorce involves separating marital and nonmarital property and allocating a share of marital property to each spouse. Since this can be a very complex and emotionally charged process, seeking divorce help and advice from an expert family law attorney is advised.

Understanding Marital and NonMarital Property

Most states are designated as equitable division of property states. Under the this system, property acquired by one spouse is owned only by that person if the money can be traced to a point of ownership prior to the marriage. If property is put into the names of both spouses, then both are considered owners, each with a 50 percent interest. If the couple legally separates or divorces, a court will determine the division of this marital property. Some couples do this themselves before they marry by drafting a prenuptial agreement that details the division of marital property in divorce.

Community Property States View of Marital and NonMarital Property

There are eight community property states, which consider assets acquired during a marriage as community property that is owned equally by both spouses. Included are earnings, debts, and all property purchased with earnings during the marriage. Community property applies once the couple is legally married and until the couple physically separates, intending to dissolve the marriage.

In a community property state, separate property acquired before a marriage can become community property if it is commingled with marital property. For example, a spouse can add savings that is considered separate property to a joint bank account that is considered community property. The entire balance of this account would then be considered marital property in divorce proceedings.

In addition to separate property that has been commingled, community or marital property includes money earned by either spouse during the marriage and items purchased with money that either spouse earned during a marriage. One spouse may not alter, transfer, or eliminate an entire piece of community property without obtaining permission of the other spouse. However, a spouse may manage his or her own share in any manner.

If a couple residing in a community property state legally separates or divorces, community property is evenly divided. One spouse may be awarded the entire amount of certain assets such as the marital home but each spouse will end up with 50 percent of the total economic value of all community property. There are exceptions to this rule of equal property division in divorce within a community property state and a divorce attorney can explain them in detail.

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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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