What is property?

Everything with exchangeable value or anything that goes to makeup a person's wealth: every interest, estate, obligation, right. Anything that you own or that generates income is considered by the law under the category of property:

Your car, your furniture, money in bank accounts, retirement plans, even a business or a profession is property. In a divorce action, property also means what you partially own and owe money on; it includes your debts.

The law in all states, views marriage as a relationship between partners, taking into account the monetary and non-monetary contributions of each spouse to the family unit. Even if one of the partners never earned one dollar, that partner is considered to have contributed to the family's property (or wealth) and has rights to a percentage of that property.

How does the law divide property?

In non community property states, property is divided equitably. This means that in order to divide up property in a divorce action, categories of property have been established. Marital property includes all property that was acquired during the marriage, regardless of how it is titled (in whose name it is). Gifts from one spouse to another are marital property if they were purchased with marital funds. Pensions and business interests that were developed by one spouse are considered marital property if they were acquired during the marriage. In fact, the only property that the court may transfer from one spouse to another is half of a retirement plan, benefit package, pension, or profit sharing.

Types of Property

Non­Marital property refers to property acquired before marriage, through inheritance or by gift from a 3rd party, excluded by a valid agreement between parties; property directly traceable to any of these sources.

Regardless of how the family home or the family-use personal property is titled, owned or leased, the court will determine who has possession of it both during (pendente lite) the divorce process and in its final decree. If the partner who doesn't have possession of the home, continues to pay all or part of the mortgage, tax, or maintenance, that party has a legal right to claim the house as his or her residence for tax purposes. 

What if it isn't clear what category the property fits into?

In the absence of an agreement between parties, The court (judge) will decide what property is to be considered marital property. Although the court cannot transfer the title of property from one spouse to another (except for pensions and the like), it can make a money award to one party to compensate for the other party keeping the property. In the case that property falls into both categories such as a car that was purchased in part with money from one partner's non­marital funds and in part with marital funds, the court will determine what percentage of the car is marital property and what percentage is non­marital and factor this into the monetary award when the property settlement is decreed. (It can also order the sale of the property and division of the proceeds.) The court will also consider issues of alimony/spousal support in determining property settlement issues.