Chapter 9 Yours, Mine, and Ours: Basics of Marital Property

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 9 Yours, Mine, and Ours: Basics of Marital Property

Taking Inventory

What Do You Own?

What Do You Owe?

What Property Gets Divided

Marital Property

Separate Property

Identifying Community Property

Reimbursements

Getting Financial Information

Is Your Spouse Hiding Assets?

Red Flags

What You Can Do

Most of us own a lot of stuff. And from houses to hostess towels, everything that you own—along with all of your obligations—must be accounted for in your divorce. Even property that you had before you were married and that you consider to be yours separately must be identified and included in the process.

This chapter will help you finalize your inventory of assets and obligations and give you the basics of what property will be divided between you and your spouse. The next chapter explains how the property can be divvied up by you and your spouse, or if that fails, by a judge.

Taking Inventory

If you filled out the property inventory forms discussed in Chapter 2, you already have some idea of what there is to divide, on both the credit and debit sides of the ledger. Now it's time to take a closer look. And if you haven't done those worksheets yet, now is the time.

What Do You Own?

Your asset list should include everything that belongs to you or your spouse, whether the property is shared or is one person's alone, and whether the property is tangible (a house, a stereo system, a car) or intangible (mutual funds, retirement accounts). Your list should also note whether you believe that any of the items on it are the separate property of either you or your spouse.

What Do You Owe?

You need to inventory everything that you owe to any person, business, or other entity. Again, make a note on your list next to any obligation that you believe may be solely your responsibility or solely your spouse's. If you're not sure, and the information below doesn't help you, you may need to ask an attorney to help you figure out whether certain things are joint or separate.

What Property Gets Divided

When you get divorced, everything you own or owe falls into one of two categories: marital property or separate property.

In some states, both marital and separate property may be subject to division at divorce, depending on the circumstances and specific laws applicable to each case. These states are sometimes known as "kitchen sink" or "all property" states. Some commentators divide these states further, into "true" kitchen sink states (in which the judge routinely considers and divides both types of property) and "hybrid" kitchen sink states (in which the judge will consider awarding separate property belonging to one spouse to the other spouse only in certain circumstances, such as when the nonowner spouse would otherwise be left with very little after the divorce). Because court interpretations of these laws are evolving, our list includes states of both types.

In most states, however, only marital property is divided at divorce. You get to keep your separate property. For this reason, what is marital and what is separate can become a contentious issue.

Kitchen Sink States
Alaska	Massachusetts	Oregon
Arkansas	Michigan	South Dakota
Connecticut	Minnesota	Utah
Hawaii	Montana	Vermont
Indiana	New Hampshire	Washington
Iowa	North Dakota	Wisconsin
Kansas	Ohio	Wyoming

Marital Property

Generally, marital property is everything that either of you earned or acquired during your marriage. So, for example, money you earned at work and put in your own checking or savings account is marital property when you get divorced. So is the car you bought and made payments on from that account.

There are some important exceptions to that rule—for example, money that only one of you inherited is not marital property. These exceptions are discussed in "Separate Property," below.

Sometimes separate property is turned into marital property by how you treat it. In some states, the only way property can be changed from separate to marital...