levitra"> levitra"> Property Divisions & Non-Marital Assets
levitra

Click to go home.

Google
 

Search:
 

Survival Tools
& Resources
Divorce & Finance Blog
Divorce Discussion
Forums
Divorce Help Desk
Divorce Resource Library
Professional & 
Resource Directory
State Divorce Information
New Trends in Divorce
 
 
Divorced or Separated Individuals (IRS Pub 504)
Divorce News
Subscribe to Divorce Interactive News
Ask the Expert
     Financial Planner
Columns
     Parental Guidance
     Child-Centered Solutions
Divorce Interactive Newsletter
Divorce Books
Glossary





Property Divisions

Property Divisions & Non-Marital Assets

By Maury D. Beaulier, Esq.

Index

The Marital Estate
Non-Marital Assets
Losing Non-Marital Value

Commingling Non-Marital Assets
Improving Non-Marital Assets with Marital Funds
Appreciation of Non-Marital Assets
Tracing Non-Marital Interests into New Assets
Real Estate & The Schmitz Formula




In any divorce case, there is usually a division of assets and a determination of each person's responsibility for debts. Wisconsin, like most states, is a "marital property" state. This means that any asset acquired and any debt incurred during the marriage is the asset or debt of both parties.

THE MARITAL ESTATE

In a divorce, the parties divide up what is called the "Marital Estate." The marital estate includes any assets or debts that were acquired during the marriage. Each spouse is deemed to have an equal interest in marital assets or debts.

This true no matter how property is titled or held and no matter which spouse's job paid for the asset or which party incurred the debt. That means the marital estate includes a 401 K account or a credit card debt that is in your spouseís name alone. In fact, marital property is inclusive and encompasses 401K plans, stock plans, stock options, real estate, frequent flier entitlements, bank account proceeds, couches, chairs, cars, utility debts, credit card debts and any other form of asset or liability.

Essentially, the law views marriage as a civil partnership with many of the characteristics of a business partnership. When you join a business general partnership, each partner has an equal interest in the ownership of the business and is exposed equally to the liabilities of the partnership. This is true even if one partner incurs the debt on behalf of the partnership or one partner performs all the work making the partnership a more valuable asset. The best way to determine what debt exists is to run a credit report.

Where there are property disputes in divorce, Courts are not particularly fond of hearing those issues. This particularly true when the dispute involves assets that are primarily household furnishings. As a result, courts often render very unsatisfactory Orders related to the division of household furnishings. In fact, in one memorable case, the Judge gave one spouse half of the dining room table and half the chairs and the other spouse the other half. In the end, the judge stated, "if you donít like what I did here, you will go out in the hall and find a better solution." This is certainly an aberration and not the norm. However, it does underscore the Courtís general dislike in dealing with property issues.

There are any number of ways to creatively divide household furnishings and personal property when disputes occur. In some cases, the parties may make a list and alternately choose an asset. In other cases, parties may bid on each item of property and the highest bidder both receives the asset and has that value credited to him or her as part of the property division. This may result in an payment from one spouse to the other to equalize the value of the assets received by each. In yet other cases, the one party may create two lists of assets and the second party then has first choice which list and assets he/she will receive.

Mediation is always a potential option for such divisions.

NON-MARITAL ASSETS

Certain assets may be excluded from the marital estate which means that they are not divided between the parties. These are called non-marital assets. Any non-marital assets that you possess remain yours and any non-marital assets of your spouse remain his assets. Under Minnesota Statutes ß 518.54, subd. 5 and existing case law, non-marital assets may include:

  • Premarital. Any asset acquired before the marriage (if the asset was encumbered by a loan that was paid off during the marriage, it may only have a partial non-marital value);
  • Prenuptial Exclusions. An asset excluded by a valid prenuptial agreement;
  • Personal Injury Proceeds. Personal injury settlements are generally considered personal to the injured party and are non-marital in nature;
  • Inheritance. Any proceeds or assets from an inheritance;
  • Gifts. Any asset acquired as a gift to one, but not both parties.

It is important to recognize that all assets are considered part of the marital estate unless proven otherwise by a "preponderance of the evidence." This places a significant burden on any person making a non-marital claim. It is essential that any and all documents including documents of title, receipts, or canceled checks that support your non-marital claims must be provided. Any failure to provide documentation may result in the division of the asset in the divorce.

LOSING NON-MARITAL VALUE

Non-marital assets may have both a marital and non-marital value. In some cases, non-marital assets may lose their non-marital characteristic. This can occur in several ways:

Co-mingling. If non-marital proceeds are co-mingled with marital proceeds so that is becomes difficult to identify the non-marital asset, the non-marital characteristic may be lost. For example, pl





DivorceInteractive.com tries to provide quality information, but cannot guarantee the accuracy, completeness or adequacy of the information, opinions or other content posted on the site. It is not intended as a substitute for and should not be relied upon as legal, financial, accounting, tax, medical or other professional advice. It should not be construed as establishing a professional-client or professional-patient relationship. The applicability of legal principles is subject to amendment by the legislature, interpretation by the courts and different application by different judges and may differ substantially in individual situations or different states. Before acting on what you have read, it is important to obtain appropriate professional advice about your particular situation and facts. Access to and use of DivorceInteractive.com is subject to additional Terms and Conditions. DivorceInteractive.com is a secure site and respects your Privacy.


Home  |  Advertise With Us  |  Professional & Resource Directory
Divorce News  | Glossary  | Divorce Discussion Forums
Change Area Code  | Terms & Conditions/Legal Disclaimer  |  Privacy Policy  |  About Us   |  Contact Us

2001-2010 DivorceInteractive.com  All Rights Reserved.