Property Division at Divorce

Question 1

What are the two approaches states can choose from for determining property division?

Answer 1

Community Property Approach

Equitable distribution Approach

(The analysis is similar under both approaches)

Question 2

What is the most widely used theory for property division?

Answer 2

Equitable distribution approach

Question 3

What is the analysis under both approaches?

Answer 3

1. Categorize the property as separate or marital; THEN
2. Determine an equitable distribution of the marital property between the spouses.

Question 4

Generally, can a court divide separate property at divorce?

Answer 4

NO!

Question 5

Generally, what are some examples of separate property?

Answer 5

1. All property acquired by either spouse BEFORE marriage;
2. All property acquired by a spouse during the marriage by gift or inheritance;
3. All property either spouse acquired with the PROCEEDS OF THE SPOUSE’s SEPARATE PROPERTY; AND
4. All passive appreciation of separate property ( appreciation in value due to the passage of time rather than the efforts of either spouse)

Question 6

What constitutes martial property?

Answer 6

Marital property generally includes all property acquired during marriage (regardless of who holds title) that is NOT separate property.

Question 7

What is active appreciation and is it considered marital property?

Answer 7

Active appreciation (appreciation in value due to the efforts of either spouse) of separate property is usually categorized as marital property.

Question 8

Are professional degrees and licenses considered marital property?

Answer 8

NO: In almost every state, professional degrees and licenses are considered separate property not subject to distribution at divorce. However, reimbursement may be available for any support provided by a spouse that contributed to the other spouse’s degree or license.

Question 9

What happens after a court categorizes the property as either separate or marital?

Answer 9

Once the court categorizes the property as either separate or marital, the court will then equitably distribute the marital property between both spouses.

Question 10

Do courts have broad discretion in the distribution of marital property?

Answer 10

YES:

Courts are afforded significant discretion in determining the equitable distribution of marital property at divorce. General factors include:

Income, property and liabilities of each party;

duration of marriage;

obligation for support arising out of a prior marriage.

Question 11

In most states, does the marital fault (e.g., adultery) factor into marital property division?

Answer 11

NO