What is the difference between marital and non-marital property?

Gain an understanding of the property you believe to be yours, and how its status as marital or non-marital property dictates what is done to it during divorce.

By Divorce Magazine
June 22, 2006

"What is the difference between marital and non-marital property?"

Property includes everything that you have that could be considered an asset, such as your home, cars, vacation property, investment accounts, retirement assets, stocks, pets, bank accounts, equipment, your business, life-insurance cash-value, pension plans, accounts receivable, furniture, jewelry, etc.

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You must also consider your liabilities. What do you owe? This must come into the mix too. Often, the parties fail to ensure that the person to whom the debt was assigned in the marital settlement agreement or divorce decree properly pays the debt. Remember: a creditor is not bound by the agreement between you and your ex or the court order. If it is a joint liability, they will look to you if not paid, regardless of any "agreement" or order.

After you've listed all your assets and liabilities, the courts look at whether your property is marital or non-marital. Marital property is subject to being divided by the court (or by the parties in a marital settlement agreement); non-marital is not. Non-marital assets and liabilities include:

  • Those acquired or incurred by either spouse prior to the marriage;
  • Assets acquired by either spouse by non-interspousal gifts or inheritance;
  • Income derived from non-marital assets during the marriage, unless the income was used or relied upon by the parties as a marital asset;
  • Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties

Marital assets and liabilities include:

  • Those acquired or incurred by either or both of the spouses during the marriage;
  • Enhancement of, or active appreciation in, value of non-marital assets as a result of the efforts of either spouse during the marriage or from the contribution to or expenditure of marital funds or other marital
    assets;
  • Interspousal gifts during the marriage;
  • All vested and non-vested benefits or funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and/or insurance plans and programs;
  • Property held by the parties in tenancies by the entirety, or otherwise commingled, whether acquired during or prior to the marriage, is presumed a marital asset, although one spouse may claim the contrary and prove a special equity.

Amy C. Boohaker (J.D., CFP¨, CDFAª) is an attorney admitted to practice in Florida, Texas, and Louisiana. The Law Office of Amy C. Boohaker, P.A. is located in Sarasota, Florida. Ms. Boohaker specializes in bankruptcy law and in the financial aspects of marital dissolution (divorce), including property division and pension division through Qualified Domestic Relations Orders (QDROs). She can be reached at (941) 366-9690.

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By Divorce Magazine| June 22, 2006
Categories:  FAQs

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