Monday, February 11, 2013

What Happens to Property at Divorce?

The disposition of property can often be a contentious issue for parties seeking a legal separation or the dissolution of a marriage. As part of the dissolution process, each party will submit documents to the court that illustrate their respective incomes and expenses, as well as a statement of non-martial and marital assets and debts. During the proceeding, the court will then, pursuant to Mo. Rev. Stat. § 452.330, set aside each spouse’s own separate property and further divide the marital property and marital debts as it deems proper.

In general, any property owned by a spouse prior to the marriage remains that spouse’s sole and separate property. It is non-marital property. Marital property, on the other hand, is considered to be all of the property acquired by either spouse during the course of the marriage. But there are several exceptions. If a spouse receives property as a gift, or by means of inheritance, that property is not martial. Any property that is acquired in exchange for any property a spouse owned prior to the marriage is also not considered to be martial property. Property obtained after a decree of legal separation is excluded as well. Parties can further agree to exclude property by way of a valid written agreement.

Aside from the exceptions noted above, any property acquired during the marriage will be presumed to be martial property. Title alone is not enough to sway the presumption. Even if property is titled individually in one spouse’s name, it will be presumed to be martial. It is possible to overcome the presumption by showing that the property falls under one of the exceptions. In a similar vein, separate property that has been mixed, or commingled, with martial property does not necessarily become marital property.

When the court divides the marital property between parties in a dissolution or legal separation, it will take a number of relevant factors into consideration. The value of the non-marital property set aside to each spouse and the custodial arrangements made for any minor children are among such factors. The court will also weigh the desirability of awarding the family home to the party with custody of the children. In addition, the court will consider the economic circumstances of each spouse, the conduct of the parties during the marriage, and the contribution of each party in acquiring the marital property. The role of a spouse as a homemaker shall be taken into consideration when determining that spouse’s contribution.

Contributions by Kelly Thompson, Law Clerk