The distribution of the marital property is one of the many difficult tasks a divorcing couple must face. During the happier times of a marriage, spouses are not attentive to subtleties of property ownership, and they frequently take a what’s-mine-is-yours, what’s-yours-is-mine attitude.

All that changes when they run up the battle flag of divorce, and distribution of the marital estate means the gun action of litigation.

In general, the 50 states divides marital estates in one of two general ways: on the basis of equitable distribution (41 states) or community property (nine states); but within this, are discretionary factors and variables are substantial enough to make marital and family law (including divorce) a speciality. Twelve states include separate property in the pot that is eligible for distribution, and eight do so if there is a need by the nontitled spouse. Moreover, 29 states use dual classification to define separate and marital property. In these states, the parties must determine when an asset was acquired to determine if it was acquired during the marriage and therefore subject to distribution in a divorce. Generally, separate property in these jurisdictions is immune from distribution.

Depending upon the circumstances, property in one spouse’s name can very well be marital and subject to distribution. Moreover, property can be separate, such as a gift to one spouse from parents, but the appreciation of it, marital, and subject to distribution. Marital estates are sometimes complicated when one spouse’s parents help finance the purchase of a house without making it clear that the money is a loan or gift. Once again, during happier times, is seems unnecessary, if not unseemly, to press about details that become important when the ship is going down.

In general, marital property is everything acquired during the marriage, and it does not matter whose name is on it.

Identifying the marital asset, therefore, is not an exact science. Affixing a valuation date, active and passive appreciation of assets, judicial discretion all come together to complicate what at first glance seems easy. Dividing the goods -- that is, deciding and agreeing what is his, what is hers and what is ours -- is anything but. And it is probably a safe bet that two spouses could divide the same estate in two different jurisdictions and produce substantially different sums subject to distribution.

Even property that entered the marriage separate or immune sometimes ends in the pot because spouses, during the happier times, taint their individual claims of ownership by putting it in joint names. Gifts between spouses further complicate identification of the marital estate. Rufus thought he and Rhonda belonged to ages when he gave her that Picasso print she now claims is her separate property and he says was a gift to the marriage.

Marital assets typically do not include any property owned prior to marriage, but divorcing spouses should not put much weight on blanket assurances.

Marital assets can be intangible -- and sometimes overlooked and even forgotten. For example, an income tax carry-forward, which is a rule of tax law that permits capital losses in one year to be used in another year, is marital property when the loss is incurred as a result of the sale of marital property.

See also Equitable Distribution; Community Property; Kitchen Sink States; Dual Classification States.

Compare Separate Property.

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1. Separate Property
   In most states, separate property is everything a person brought to the marriage. Gifts and inheritances are also separate property.
   Contributed on 7/9/2007 by: DivorceDex.com Staff

   Category: Property Division  (Applicable in All States)

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