Division of Assets in Divorce: Understanding Marital Property

In a recent post, I wrote about some basic principles in the division of assets during a divorce (read it HERE).

Of course, no lawyer could tell you off the top of his or her head exactly how the property will be divided because every single case is different.

However, it can be safely said that the usual starting point for the division of assets is that while property and debts are treated alike, they’re to be divided fairly and equitably unless there are reasons to divide things differently. We start with a presumption that they should be divided 50/50.

Recently, I wrote about how emotional attachment can cloud people’s thinking during the divorce process and make the case last longer and cost more money.

Besides the emotional components, the other major challenge I see to a smooth divorce proceeding is the failure to recognize that anything accumulated during the marriage automatically becomes marital property.

Understanding Marital Property

Assuming there is no pre-marital agreement in place, marital property is anything accumulated during the marriage. Money, debt, assets, even inheritances belong to the marriage – that is, both people regardless of how the property is titled.

It seems simple, but it can quickly become very complicated.

I’m thinking specifically of a case I worked on several years ago. The father worked hard during the marriage at a good paying job, and he accumulated a substantial retirement account. While he steadily worked to support the family, the wife bounced from job to job and never made substantial financial contributions to the family or retirement accounts.

When they were ready to get a divorce, the wife wanted half of the retirement funds – which had grown to about $700,000.00. The husband was furious, and questioned, “Wait! All that money came from my hard work, not hers!” [This was not a case that the wife was a stay-home mother caring for young children. The children were in high school or in college.]

Unfortunately for him, the law is the law and legally he was forced to transfer a considerable portion of the retirement funds to his wife: it was marital property.

What about Separate Accounts?

Sometimes people mistakenly believe that if they keep their finances separate through the relationship, they will stay separate in the divorce. However, this is not the case.

One of my clients learned this the hard way. He and his wife had kept their finances separate for many years, and, when they came into money, they divided it 50/50.

The wife took her share and landscaped the house. The husband invested his and made a considerable return.

When an appraiser came to evaluate the value of the home, it was found that the wife’s landscaping added no value to the property. When they filed for divorce, the wife asked for half of the appreciation on husband’s investment.

He thought he was protected because they had kept their assets separate. Unfortunately, this was not the law and, once again, the wife was entitled to a substantial portion of the money.

It is very wise to have an experienced attorney look through your assets when going through a divorce, even if you have a premarital agreement in place. Division of assets can quickly become complicated and unfair unless you have someone working in your corner.

If you’re going through a divorce, don’t do it alone. Call our office today at 303-449-1873 to set up a free consultation.