How splitting marital and nonmarital assets works in divorce

Do have a clear understanding of Marital vs. Nonmarital Property

Many people just starting the divorce process are confused about which assets must be split between both parties, which can be kept by each individual. In general, this is a confusing topic for even the savviest of clients. Therefore, it is important to have a basic understanding of what the terms “marital” and “nonmarital” mean when it comes to property.

Marital Property

Marital property means property (real or personal) acquired by the parties together, or either of them individually, at any time during the existence of the marriage. Even property acquired by either spouse before the marriage and before the valuation date is presumed to be marital property regardless of whether title is held individually, or by the spouses jointly. The presumption of marital property can be overcome by a showing that the property is nonmarital. Simply put, everything is considered marital property until the spouse making a nonmarital claim provides sufficient documentation proving a particular piece of property is nonmarital.

Nonmarital Property

Nonmarital property can be any property acquired by either spouse before, during, or after the marriage if the property meets one of the following criteria. Property is nonmarital if it is acquired as a gift or is inherited by one spouse and not the other from a third party. Property acquired before the marriage is nonmarital, but the spouse claiming that said property is nonmarital must prove that the property was acquired before the marriage. Property is nonmarital if the property is acquired after the date of valuation. Property is also nonmarital if said property is excluded by a valid antenuptial (also known as a pre-nuptial) agreement. The increase in value of nonmarital property or the exchange thereof is also nonmarital. However, all nonmarital claims must be supported but sufficient documentation, otherwise the property will be considered marital.

Do dig back in your records for nonmarital claims

When completing a list of assets and property during the divorce process, it is important to recall when, how, and with what funds a particular piece of property was acquired. If you believe that a particular piece of property falls within one of the nonmarital property exceptions, it is important to speak with your attorney. Determine if a nonmarital claim can or should be made, what documentation is needed to prove the claim, and how best to determine the value of the nonmarital claim.

Do pick your battles

Many judges don’t want to waste time getting involved in dividing individual items. They don't have the time and it is very difficult to do. The court will urge you to go to mediation to resolve this. If that doesn't work, it's likely you would have a pre-trial conference with the judge, judge's law clerk, or a matrimonial officer who would exert pressure on your lawyer(s) to get this worked out.

It's really in your best interest to try to resolve this on your own. Keep in mind that it’s not worth spending $275 an hour for your attorney to resolve who gets a painting that’s worth $300.

Do hold onto your wedding ring

Anger and resentment in a divorce may give you the urge to do away with your engagement ring. An engagement ring is considered separate property in most states since it represents a gift given to you before marriage. Most rings are also worth a lot of money so if you have one, hold onto it. It could be an important source of income once you are on your own. The same goes for other high-value items in the marriage that are worth discussing even if there is no longer sentimental value attached to them now that the marriage is over. China, art, and other jewelry are all examples.

Do beware of hidden assets

In many states, the law assumes that spouses are financial partners during a marriage and, as partners, they are entitled to share both the assets and income created by the partnership. Because of this concept, divorcing couples have a duty of full disclosure of their finances. They must disclose all of their income, assets, and debts accumulated during the marriage, including:

• Home/real estate ownership
• Bank and savings accounts
• Pension and retirement/401k accounts
• Business ownership and operation

Failure to fully disclose all assets or income in divorce proceedings can carry serious consequences. That doesn’t mean it doesn’t happen. This is another instance in which good records, photos and proof can help you. Alternately, your attorney may have ways to bring hidden assets to the surface during a divorce proceeding.

Do not listen to threats

If your spouse is threatening to have you pay for all the jewelry, vacations and other items he or she claims to have purchased during the marriage and even sending you an “official” bill, don’t play into it. This is a spouse’s attempt to scare and control the other party. Items purchased while you were married are marital property. If there is debt from the purchase of these items it will likely fall on both spouses, not just one.

Do not get hung up on your ex’s false claims in his financial affidavit

Let’s say your spouse’s financial affidavit states that his/her 2013 Land Rover is

worth $20,000 less than it actually is and that s/he’s making monthly payments when you already wrote the check to pay for the car yourself.

First, remember that a financial affidavit is just his/her position. That's why there is a trial. You have the opportunity to get the car valued and to show the court that the accounts are closed. Yes, the affidavit is supposed to be sworn to be true, but in reality it is just another pleading. Just make sure your attorney has a clear list of what the truth is so he or she can prove those points. Print out a blue book valuation for the car and give your attorney the receipts for the accounts you paid off and closed.

Do not take things that don’t belong to you

If you move out of the house, don’t take all the furniture or items that you purchased together. The court can rule your spouse is entitled to half of the furniture and that you are in contempt of court if you don’t return it.

Also, don’t threaten to throw your spouse’s items out if he/she doesn’t come get them.
This is willful dissipation of marital assets and will count against you.

Another topic in this category is pets. Dogs, for example, are considered property by the courts and, as a result, are divided in the property settlement. You can ask for the dog, but keep in mind that the judge will try to assess who can best care for the dog and who has the greatest bond with him. Be prepared to make a case for why you should get the pet. Do not assume the pet is yours without having these conversations with your spouse first.

Do not procrastinate on getting a bank account, credit cards, etc.

Don’t wait to open a bank account and apply for credit. You can’t make purchases under your husband or wife’s name when you are divorced. Also get your credit report so you will know if you qualify for loans or will be able to rent property.