Divorce Law: The Differences Between Marital Property and Non-Marital Property

Posted: September 9, 2014 By Krigel & Krigel

Determining how to divide property in a divorce is sometimes a complicated matter and, when a couple cannot make their own division, a court will make the division for them. In this post we will discuss the differences between marital property and non-marital property (sometimes called separate property). We will also provide an introduction into how a court analyzes a division of property.

Marital Property

Every state has its own definition of marital property. Missouri law states that marital property includes “all property acquired by either spouse subsequent to the marriage.” Therefore, all property acquired after the marriage (but before the divorce) is presumed to be marital property.

Missouri has a number of exceptions to this presumption. Some of those exceptions include property acquired by gift, through an inheritance, and property excluded by a valid written agreement (such as a pre-nuptial agreement). Missouri also provides an exception for the increase in value of property acquired prior to the marriage unless marital assets, including labor, have contributed to these increases and then only to the extent of the contributions. If you believe an exception may apply to your situation, you should contact an attorney.

Don’t forget that wages earned during the marriage, including deferred benefits such as retirement plans, constitute marital property and are subject to division.

Non-Marital Property

Property that is not marital property will be considered non-material, or separate, property.

Non-marital property is often mixed (or “commingled”) with marital property and when this occurs, confusion as to ownership is likely to follow. For example, suppose a husband received an inheritance from the death of a relative, and he placed that money in the couple’s joint checking account. The mere commingling of the money will not transform the non-marital property into marital property, but extra legal analysis is necessary to determine whether the commingled property is non-marital or marital.

Division of Property

Courts generally seek to divide marital property in an equitable manner, usually defined by statute to mean a “just” division. The property will not necessarily be divided 50/50. Rather, the court will consider many factors including economic circumstances and custodial arrangements for any children. We will explore the division of property further in a future post.

If you are experiencing a divorce or separation and have questions about your unique situation, you can contact one of our Kansas or Missouri divorce attorneys today to learn about your rights.


Image: Thinkstock/Creatas

*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.

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