Is it all marital property?

October 20, 2021

Once you get married, everything you own, down to your socks, begins to take on the characterization of marital property. Property, at least in this context, means stuff – houses, cars, money in your bank account, pets, clothes, and the list goes on. Your paycheck or earnings are used to support your marriage and buy things. While only one person may use the thing bought, it is still probably marital property.


Lawyers spend a lot of time litigating what is not marital property. There are seven main categories of items that are not marital property: things acquired by a gift or inheritance; property that existed before marriage (and those things that were created by its sale); property obtained after a judgment of separation; property obtained if one spouse sues the other; if non-marital property used as collateral to create marital property; the pre-marriage portions of retirement; and, the increase in value of non-marital property.


I have spent the most time explaining gifts and transmutation. So, lets take an example. If Wife’s dad gives her a house it may be non-marital property. If she puts Husband’s name on it, it is probably now transmuted and brought into the marital estate and is marital property. In the same scenario, Husband continues to work at the same job he has always had. When Husband and Wife married, Husband’s retirement had $75,000 in it. He continues to add to his company’s 401(k). 10 years later, that original $75,000 is worth $175,000 and his marital portion is worth $150,000. If, however, he leaves that job and moves his 401(k) into an account with both his and Wife’s name, he may have made it marital property.


As their marriage is falling apart, Husband moves out and opens a new bank account. Wife buys a BMW. The new bank account and the BMW are still marital property because they have not gotten a divorce or a judgment of legal separation. They may consider themselves separated, but legal separation requires a court to enter an order.


Five years later, Husband and Wife are still married and have not filed for divorce. Wife wins the lottery. This too is still probably marital property because they are not divorced. However, if Wife’s aunt leaves her money, that probably is not marital property.


Even in the context of a family that has lived apart, I thoroughly detail in the documents who gets what after the divorce. It is my job to help you have those things after your divorce that you consider yours. This requires me to list all the bigger items and ensure I use language to include the small stuff – socks, jeans, pictures on the wall, the sofa – ensuring there are no questions.


So the answer is yes, it probably is all marital property. But if you want to make it all not marital property, and work with your soon-to-be-ex, I would love to help you get to your future where what is yours really is all yours.