How is property divided between spouses in a divorce?

In a divorce, the court is required to make a “just and equitable division of the marital property” of the parties without regard to marital misconduct. Although this does not require the court to split the parties’ marital property 50/50, in practice, most courts will do so. The court cannot consider marital misconduct such as domestic abuse or adultery in dividing property.

Marital vs. Non-marital Property

Marital property is all real property and personal property, including vested pension plan benefits, acquired by either spouse during the marriage. Regardless of how title to the property is held, all property acquired by either spouse during the marriage is presumed to be marital.

House - property division during a divorce
Each party is entitled to keep their own “non-marital” property. Non-marital property includes all real property and personal property which is acquired before the marriage, is excluded by valid antenuptial (prenuptial) contract, or is acquired as a gift, bequest, devise, or inheritance made by a third party to one spouse but not the other spouse. Because non-marital property includes property acquired before the marriage, getting married does not give your spouse a claim to your previously-owned property, which is a common misconception.

Since all property acquired by either spouse during the marriage is presumed to be marital property, the spouse claiming that an item of property is non-marital must show by a preponderance of the evidence (more likely than not) that the item is non-marital. The most important factor is the donor’s intent in determining whether a gift was made to one spouse but not the other. When non-marital and marital property is commingled, non-marital property may lose its non-marital character unless it can be readily traced. An example is when one spouse’s inheritance is deposited into the parties’ regularly used joint checking account.


Other Division of Property Considerations

There are a few other things to note. In addition to dividing property, the court may order that the parties’ marital property be sold if the court finds it necessary to preserve the parties’ assets.
Some examples of the property to be sold are:

  1. When neither party can afford to pay the cost of the party’s home on their own, the court may order the house to be sold.
  2. If the court finds a spouse’s resources or portion of marital property are so inadequate as to work an unfair hardship, the court may divide up to one-half of the non-marital property to prevent the unfair hardship. In practice, however, such an action by the court is rare.
  3. The parties cannot dispose of marital assets in contemplation of or during a divorce proceeding except in the usual course of business or for necessities.

A party intending to file for divorce may open an individual bank account with marital funds or remove marital property from the home before filing for divorce. Such actions can be taken into consideration by the court when dividing property. Lastly, the appreciation in the value of the non-marital property is considered to be marital property if it was the result of marital funds or efforts. An example would be a lake home owned by a party before the marriage that is then remodeled with the parties’ joint funds or labor. The increase in value of the property as a result of these joint actions is considered to be marital property.

Such as with child custody, child support, and spousal maintenance issues, determining what is non-marital property and dividing marital property can be one of the many potentially complicated issues in a divorce. As a result, it is essential to have an experienced family law attorney like Attorney Kay Snyder and the attorneys at Jeddeloh Snyder Stommes represent you in a divorce proceeding.

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