October 7, 2010

Marital Property Rights

Posted in Divorce tagged , at 7:43 pm by demetriagraves

Many people don’t realize that if you are married, what’s “mine” is really “ours.” A large percentage of my family law practice deals with divorce and dissolution cases. Many people are shocked to learn about laws concerning the division of property and debts in a divorce case. There is a common misconception that just because some property, bank account, credit card or other asset or debt is in the name of only one spouse and not the other, it belongs to them, even after a divorce. When parties are divorced, the court is required to divide all marital property and debts. That division first requires the judge to determine what constitutes marital property and debt.

Any assets or debts acquired from the date of the marriage to the date of the divorce are considered marital. An exception to this is any assets or monies received as a gift or an inheritance during the marriage are considered separate property, but the spouse must prove it was an inheritance or gift. Any assets or debts that existed prior to the marriage are separate, but again, the spouse who wants to declare something separate has the burden of proving it.


A common area of concern for clients is a division of retirement and pension plans. Those plans, including military, government and private pensions, are considered marital property. Social Security is one exception and cannot be divided by federal law.


Once the court has determined which assets and debts are marital, the judge can divide them up between the parties. Courts begin with a presumption that an equal property division is what is equitable or fair. Thus, a 50/50 division of all assets and debts will be the starting point.


However, sometimes a 50/50 property division would not be fair to one of the parties. For example, if one of the spouses is hiding or stealing money from the other, the court can take that into account. If a spouse has given gifts away to friends or family, those also can be considered by the court. In extreme situations, an attorney might even decide to try to recover those missing assets. In these cases, the court has the ability to divide the assets and debts in some other way that would be fair.


If you are uncertain about your rights or how you should proceed, consult with an attorney first. If you are contemplating divorce or dissolution, a family law attorney can evaluate your assets and debts and advise you as to whether it is likely for them to be considered marital or separate. I offer a free confidential initial consultation where you can get all your questions answered.

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