There are plenty of things that divorce attorneys have to help their clients work out. Among them is the division of property. In order to determine who gets what, courts have to look at ownership. They also have to determine how ownership is governed by property laws in their respective states. Asset division is not always black-and-white.
ABM Family Law is a Chicago area law firm that handles divorce, among other things. Their Chicago divorce lawyers say that there are three types of property covered by divorce proceedings: non-marital, marital, and community property. Each type of property is addressed based on legal ownership.
Note that states govern how property is divided in divorce proceedings differently. What you read in the following paragraphs is general by nature. Depending on the divorce laws in your state, asset division may vary to some degree from what you read here.
Non-marital property is property obtained by a person prior to marriage. It could be anything. For example, it could be a piece of real property. A person could purchase a property as an investment years before getting married. If the title remains exclusively in that person’s name even after being married, the law will recognize it as non-marital property.
Pets are often considered non-marital property as well. If you bring a dog into marriage with you, a divorce court would likely allow you to retain full ownership in the event you divorced. You brought the dog into the marriage; you take it with you when the marriage ends.
Marital property is property a couple obtained at some point during their marriage. A house jointly owned by husband and wife is considered marital property. Cars might also be considered marital property, even if both husband and wife drive cars registered in their own names.
The interesting thing about marital property is that it can be divided in whatever way a court finds suitable. For instance, a court could determine that the husband keeps a vacation home while the wife gets their primary residence. Both parties could be granted full ownership to their respective vehicles. This is where marital property differs from community property.
Not all states have community property laws in place. Those that do draw a clear distinction between community and marital property. How that distinction is drawn is up to state law. What must be understood about community property is that it must be divided equally among both parties.
If a piece of real estate is considered community property by state law, a court must find a way to divide it equally among both parties. The most obvious option is to sell it and split the proceeds. But there are other ways to work out joint ownership.
Working Things out Amicably
After child custody issues, division of assets tends to be the most hotly contested part of divorce proceedings. Asset division can be especially sensitive if financial problems are at the root of a couple’s divorce. Both want their financial due. Both might also want to see the other punished financially.
Ideally, courts want to see divorcing couples work these sorts of issues out amicably. Judges love nothing more than to arrive at status conferences only to discover there is little for them to do but review and sign off on the proceedings.
Now you know the difference between non-marital, marital, and community property in a divorce. How assets are classified partly determines post-divorce ownership. One way to avoid potential issues is to draw up a prenuptial agreement prior to getting married.