What is Marital Property?

In EVERY divorce case, the court will have to divide marital property. Even if the parties believe that no such property exists, the court will have to at least address the issue of property.

So What is Marital Property?

Basically, marital property is any property that was earned or payed-for by either spouse during the marriage. That might sound simple, but it can get complicated. Some things you pay-for all at one time, like a television set. If you are married and you buy a television and pay for it at the store, that television is marital property.

But other things you do not pay for all at once. Rather, you pay-for them over time, such as a car or a house. For those things, the questions is more complicated. You may make all of the payments during the marriage, in which case the item is entirely marital property. Or you may make some of the payments before the marriage and other payments during the marriage, in which case it is only partially marital.

A pension or retirement plan is another piece of property that is “paid-for” over time. You pay for it whenever you earn it by working, as in the case of a pension, or you pay for it by depositing money into it, as in the case of a 401k or Thrift Savings Plan (TSP). A pension or retirement plan will be marital only to the extent that it is paid-for or earned during the marriage.

There Are a Few Other Marital Property Rules that You Should Know.

First, titleof the property has no bearing on whether it is marital property. Whether it is titled jointly, in husband’s name, or in wife’s name has nothing to do with it. A piece of property can be marital even if it is titled solely in the name of one party or the other.

Second, propertythat one inherits is never marital property. So if your mother leaves you her diamond necklace in her will, you don’t have to worry that your spouse will obtain a chunk of it.

Third, propertythat one acquires by gift is never marital property. So if your mother gives you her diamond earrings for as a wedding gift, or your father gives you an antique gun for your birthday, your spouse is not entitled to part of it.

Finally, property that one earns or pays-forduring the marriage is marital property even if the parties are separated. If a divorce case goes all the way to trial, the court will likely consider property to be marital even if it was acquired after the parties had already separated. The court considers a marriage to be in existence until the entry of the actual divorce decree–regardless of whether the marriage was happy.

The laws relating to marital property are intended to divide between the spouses that body of property that was earned by the spouses as a married couple. In general, such property is limited to that which was earned or paid-for by either spouse during the time of the marriage.


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