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What is marital property?

UPDATED: February 6, 2012

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Marital property, also called “marital estate,” is property acquired by a husband and wife during a marriage. It is distinct from individual property (property acquired before the marriage) that belongs to one spouse but not the other. The concept of marital property becomes key when two parties must separate assets in a divorce.

Marital Property Division in Divorce

When a married couple decides to dissolve the marriage, they must also dissolve their financial union. This means dividing up assets and debts. The couple can determine amongst themselves how they wish to divide up these assets and present an uncontested divorce settlement agreement to the court. However, it may prove difficult for two people who dislike each other enough to divorce to come to an agreement on how to split up money and property. As such, a court often becomes involved in dividing the marital property.The courts must have a fair system in place that will help determine how to divide marital assets in a divorce. There are two different systems in place. Each individual state determines which systems they will use. These systems include:

  1. Equitable distribution, wherein the court determines the distribution of property based on what it believes is "fair"
  2. Community property, wherein each spouse is entitled to 50 percent of all marital property

Marital Property and Community Property

In a community property state, essentially all assets acquired during the marriage are considered to be marital property and are divided 50-50, regardless of who actually bought the assets or paid for them. Because each party may keep his or her own non-marital property, classification of assets can make a tremendous difference. Anything purchased by the couple during marriage, even if only one spouse worked or wanted it, is usually shared and split. Property acquired before the marriage, or money from an inheritance or personal injury judgment, is generally not considered marital property unless it has been "co-mingled" or combined with any jointly held property.

Getting Help

If you are going through a divorce, you should consider speaking with a lawyer for advice on marital property and divorce asset division. A lawyer can assess your situation and determine what is likely to happen regarding division of assets. A skilled attorney can also assist you in obtaining the fairest divorce settlement possible.

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