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Determining Marital Property in Divorce

Quick Facts

Property acquired during marriage is very likely to be marital property.
Property must be proven to be nonmarital, otherwise it will be assumed to be marital.
Any type of property can be marital or nonmarital property.

Basic Definition of Marital Property

Marital property is property owned by the parties that was acquired during the marriage. The property includes both real property and personal property, including vested public or private pension plan benefits or rights.

Marital property considered in dissolution, legal separation, or annulment proceedings is property that was accumulated at any time during the existence of the marriage relation between the parties, or at any time during which the parties were living together as husband and wife. The dates for determining what property is included are from the date of marriage to the date of valuation.

Presumptions & Ownership

All property acquired by either spouse subsequent to the marriage and before the valuation date is presumed to be marital property regardless of whether title is held individually or jointly by the spouses, such as in joint tenancy, tenancy in common, tenancy by the entirety, or community property. (See: types of ownership.)

Each spouse has a common ownership in marital property that vests not later than the time of the entry of the decree in a proceeding for dissolution or annulment. The extent of the vested interest shall be determined and made final by the court.

The presumption that a piece of property is marital property can be overcome by showing that the property is nonmarital property instead. If the property cannot be proven to be nonmarital property, then the court will assume that the property is marital property, even if the property really is nonmarital in type.