Property Division in Divorce: Presumption Relating to Marital Property

Property division in divorce generally affects only marital property, but some states allow equitable distribution of separate property. Marital property is presumed to be property that is acquired by both or either of the spouses during their marriage. Divorce courts divide marital property according to the classification schemes in controlling statutes or case law.

Presumption

In the divorce context, there is a general presumption that marital property includes property that is acquired by both or either spouse during a marriage and that "divisible property" is acquired after separation but before the parties' divorce petition is filed.

Divisible property generally consists of:

  • Changes in the value of marital property between the separation date and the property division date;
  • Assets earned or acquired before separation, but received after separation;
  • Marital property-related passive income received between the separation date and the property division date; and
  • Increases in marital debt occurring between the separation date and the property division date.

Divisible property usually is valued by the court at the time of the trial, but marital property usually is valued as of the date of separation.

Exemptions

Exceptions to the marital property presumptions include the following:

  • Property that is acquired by gift, legacy, or descent;
  • Property that is acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy, or descent;
  • Property that is acquired by a spouse after a legal separation;
  • Property excluded from the marital estate pursuant to the parties' valid agreement, including pre-nuptial agreements;
  • Property that derives from any judgment or is obtained by judgment awarded from one spouse to the other spouse; and
  • Property that is acquired before the marriage.

Some states use the date of separation as the cut-off point for calculating accumulated marital property. Marital property presumptions are not always the deciding factor. Divorce cases can be complex and can present situations and circumstances that differ widely from case to case. The laws provide the basic structure and allow courts some flexibility to deal with unusual circumstances.