One of the big topics that comes up in divorce cases, aside from child custody and alimony, is property division. People want to know how their property will be divided and what they can expect. I will take you through a few different scenarios on this page.
Pre-Marital Assets and Marital Assets
In property division, there are different types of assets that may be divided. Property is usually broken up into pre-marital assets and marital assets. All assets owned by either party are assets of the marriage. Whether they were acquired before or after the marriage took place is an equitable fact that the courts can consider. But it’s still an asset of the marital estate in the sense that you own it, you may have brought it into the marriage, or your spouse owns it. This is the case unless you and your spouse have a prenuptial agreement that discussed how assets are divided. All of your assets, including premarital assets, absent of prenuptial agreement are fair game for purposes of a divorce.
However, in reality, courts will oftentimes credit you with your premarital assets depending on a variety of factors. Generally lawyers will say, “Look, one person keeps their premarital property, the other keeps their premarital property, and we split how much the premarital assets have grown during the marriage. Anything they approved during the marriage we split up.” That’s a reasonable way to settle things.
But let’s say you were married and your significant other brought a significant amount of assets into a marriage. And this was a long-term marriage, it’s not a two-year blip, it’s a 10 or 15-year marriage. Let’s say you didn’t acquire much during the marriage but your spouse had significant premarital assets.
A court won’t send you away with nothing and leave your spouse with $3 million in premarital assets. Those assets are still fair game. And so while premarital assets have a distinction that’s important and typically the courts will credit that, it’s not the be all and end all.
Another question I get a lot is: “What happens to inheritance in divorce?” If you had an inheritance, the question the court will ask is, “Is the inheritance a marital asset?” And the answer is yes, it is. The question is are you going to be able to keep the inheritance your mom gave you when she died or are you going to have to share that with your spouse? And the answer is it depends.
Courts sometimes look at the length of the marriage and at what point in the marriage you got your inheritance. If you got an inheritance in year one of your marriage that you’ve put it into an account – you’ve let it grow, you’re using the money for vacations – the court may divide that among both parties.
But a court will likely treat that differently than a situation where in the last five years your mom died, left you with $50,000, you put it into an account in your name, and you haven’t touched it. The court will probably let you keep that without any claims from your spouse. So, the answer is it depends. But, it’s important to know if you can prove premarital.
Courts generally give people what they came into the marriage with. Any increases, or anything made together, they split and you move on.
Sometimes it can be difficult to prove what you came into the marriage with. You might have to go back several years to find the proper documentation. This is one place where an attorney can help. If you need help with property division in your divorce, contact us.