Marital vs. Non-Marital Property
When most people think of property, they think only of assets, but debts are also considered property for the purpose of a divorce settlement. In order to divide assets and debts between the spouses, a thorough listing and determination of status is needed. That status can be marital, non-marital, or a combination of the two.
If the couple cannot decide on the division of property, a judge will do so. Pennsylvania and New Jersey are Equitable Distribution states, which means the judge divides the marital property based on what he or she considers fair. The criteria can include earnings of each spouse, length of marriage, health of the spouses, and minor children.
Marital Property – Marital property will be the bulk of your property. A partial list includes:
- Assets acquired or debts incurred during the marriage
- Gifts from one spouse to the other
- Benefits from retirement accounts, pension, insurance plans, etc.
- Benefits from reward programs, such as frequent flyers, etc.
- Electronic online storage or entertainment (iCloud, iTunes, Netflix, etc.)
A recent blog provides a list of shared accounts to include when listing your assets.
Non-Marital Property – The list of possible non-marital property is short. It includes:
- Assets acquired or debts incurred prior to the marriage
- Inheritance
- Gifts received from someone other than the spouse
- Assets (or liabilities) with a written agreement clearly stating the property is non-marital
When Non-Marital Can Also Be Marital Property
Things are not always as they seem, and just because a spouse had property before marriage doesn’t mean it will remain entirely non-marital property. Here are just a few possible scenarios for each of the types of non-marital property:
- Asset: If one spouse owned the house or a business before marriage, but both spouses worked to pay off the mortgage or grow the business, a portion of the value of the house or business would be considered marital property.
- Debt: If one spouse incurred student loans before marriage, but the education led to a lucrative job that benefited both spouses, a portion of the debt could be considered marital property.
- Inheritance or gift: If an inheritance or gift was used to upgrade the family home or purchase property that would generate income for the family, the clear intention was to treat the inheritance as a marital asset.
How to Protect Non-Marital Property
If you want to protect your non-marital property, you can arrange a prenuptial agreement. Such agreements can also be drawn up after marriage, designating specific assets or liabilities that both parties wish to be considered non-marital. These agreements can be challenged if subsequent use of the property suggests marital use, as described above, but the challenging party would have to provide a very strong case to overturn a written agreement.
Division of marital property is best resolved with a professional who is experienced in helping couples come to equitable and amicable agreements. Such an agreement will avoid giving a judge the power to decide for you.
