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Division of Property in a Divorce: Marital and Nonmarital Property

In a Divorce in Missouri, a Court is charged with determining whether property is “marital” or “nonmarital.” The Court must then set apart to each spouse his or her nonmarital property. The marital property is divided as the Court deems just after considering all relevant factors. As such, nonmarital property is not subject to division, but marital property is. What’s the distinction?

Generally, marital property is all property acquired by either spouse after the marriage, except as provided otherwise by statute. Some of the statutory exceptions include property acquired by gift/inheritance and property set aside by pre-nuptial agreement. Sometimes the exceptions are a bit counter-intuitive. For example, all property acquired separately by gift is nonmarital; this includes property gifted by one of the parties to the other during the marriage, even if it was purchased with marital funds.

At the same time, and to further complicate the matter, separate property which is not subject to division may be marital property in a few ways. The execution of a deed in joint names represents evidence of a donative intent to create a gift to the marital estate. As such, transmutation — or the re-titling of separate property in names jointly — is a voluntary way separate property becomes marital property. Sometimes it does not even take formal re-titling. Indeed, the mere commingling of marital property with separate property may transmute the entire corpus to marital property (e.g., putting cash from a separate bank account into a joint bank account).

What do courts consider when make a disposition of property? The economic circumstances of each spouse; the contribution of each spouse to the specific property; the value of the nonmarital property; the conduct of the parties during the marriage; and the custodial arrangement for minor children, if any.

As you can imagine, the issue can become quite thorny. Complex rules are in place for things like family businesses, marital debts, pensions, and even the value of education degrees.

Contact us if you are in need of assistance.

Henry Elster, Esq.

Saint Louis Family/Divorce Attorney

The Elster Law Office, LLC

(e-mail) henry@elsterlaw.com

www.elsterlaw.com

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