Tag Archive for: non-marital property

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.

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Non-Marital Property

Section 3501 of the Divorce Code sets out what property will be considered non-marital property and therefore not subject to equitable distribution in a divorce case. Any property acquired prior to the marriage that has not increased in value during the marriage is non-marital as well as any property acquired after final separation but potentially prior to the entry of a divorce decree as long as marital property was not used in its acquisition. Any inheritance received is treated as a gift and will also be deemed non-marital so long as it is not subsequently commingled with marital funds. The court will also not look at property that was disposed of in good faith while the marriage was intact. An example would be property sold to a family member for its fair market value. Veterans’ benefits cannot be attached, levied or seized except in the case where a portion of the veteran’s retirement pay was waived in exchange for the benefits. Finally, any payment from a cause of action or lawsuit where the underlying claim occurred before the marriage or after separation. Property acquired prior to the marriage or in exchange for said property is not marital as well as property expressly excluded by valid written agreement of the parties at any time.

Property that is generally considered marital would be all property acquired by either party from the date of marriage through the date of separation that doesn’t fall into any of the above categories. There is a presumption all property acquired during the marriage is marital regardless of how title is held (e.g. individually vs. jointly). It will also include the increase of value of any non-marital property during the course of the marriage.

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Increase/Decrease in Asset Value

Property acquired prior to the marriage or in exchange for said property is not marital however the increase in value of that property during the marriage is up for distribution. Pursuant to 23 Pa. C.S. §3501(a)(1), any increase in value for non-marital or separate property should be measured from the date of marriage or date of acquisition through the date of separation or date close to the equitable distribution hearing, whichever date results in a lesser increase. This provision is intended to protect the party with the interest in the non-marital property in situations where there may be a lengthy time period between when the parties separate and when they get to the point of dividing the property.

Section 3501(a)(1) also discusses the potential for offsets in any increase in non-marital property by a decrease in non-marital property. Accordingly, if Wife had an increase in non-marital property as well as a decrease in non-marital property of the same amount, the two occurrences would cancel each other out. However, if the increase is greater than the decrease, the increase would be reduced by the extent of the decrease for a net value. This rule applies to the non-marital property of each spouse. In other words, Wife’s increased value in non-marital property can only be offset by her decreased value in non-marital property, not Husband’s, and vice versa.

Click here to read more on equitable distribution.

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