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Property division: Figuring out what is mine, yours and ours

Thumbnail image for Thumbnail image for Thumbnail image for Derek Trosvig.jpgDuring your marriage, you may not have given much time to what assets belong to you, your spouse or both of you. You probably considered everything to be on a big pot that each of you could benefit from while you were together.

Now that you are going through a divorce, separating out what property belongs to you, your future former spouse and the marital estate may need to be your first step when it comes to the property division portion of your proceedings. Whether you intend to go to court or work out your own settlement agreement, this part of the process could make all the difference for your financial future.

How would the court decide?

When it comes to dividing property in a divorce, the court begins with the assumption that everything belongs to the marital estate. If you believe that isn't the case, then you will need to overcome that presumption. In general, the court may automatically exclude some types of property from the marital estate:

  • Property that you or your spouse acquired after the legal date of your separation
  • Property that you or your spouse received through legacy or descent or as a gift
  • Property that you or your spouse exchanged for another piece of property received through legacy or descent or as a gift
  • Property that you or your spouse owned prior to the marriage
  • Property that you and your spouse excluded from the marital estate in a prenuptial or post-nuptial agreement
  • Property that you or your spouse obtained from the other through a judgment or the judgment itself

If you made efforts to keep these property types separate during your marriage, you should have no trouble having the court exclude it from the marital estate. However, if you somehow commingled the property with marital property, that gets a bit tricky. Even if the court agrees that you own the property separately, any increase in value of the property during the marriage may be subject to division.

For example, if you owned a home prior to the marriage and used marital funds to make repairs or upgrades to the home, a portion of its value may be subject to division. If you started a retirement fund prior to your marriage, any increase in its value during the marriage may be subject to division. Every asset will need to undergo this type of scrutiny to determine whether you retain all or a portion of a piece of property you consider as your separate property.

Making a case for separate property

It may not be as easy to identify separate property as you think. In fact, you may need to provide substantial evidence that the asset is, in fact, your sole property. Whether you intend to go to court or work out an agreement outside the courtroom, it would more than likely be in your best interest to have the appropriate evidence available when you argue that a piece of property is yours to keep.

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