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Marital property, also called the “marital estate,” is property acquired by a husband and wife during a marriage. It is distinct from individual property (property acquired before the marriage) that belongs to one spouse but not the other. The concept of marital property becomes key when two parties must separate assets in a divorce.
Who owns what property in a marriage, after divorce, or after a spouse's death depends on whether the couple lives in a common law property state or a community property state. During marriage, these classifications may seem trivial, but in the unfortunate events of divorce or death, these details become very important. Common Law Property States.
Marital property refers to any assets or funds that were obtained during the course of marriage. These will usually be valuated and split evenly between the spouses in the event of a divorce or legal separation.
What is the Difference between Marital and Non-Marital Property? After you've listed all your assets and liabilities, the courts look at whether your property is marital or non-marital. Marital property is subject to being divided by the court (or by the parties in a marital settlement agreement); non-marital is not.
Non-marital property, also referred to as “separate property,” is property that belonged to one spouse before the marriage. Other property that is not considered marital is property is anything gifted to one spouse, and property inherited by a spouse.
Non-marital or “separate” property is property that is not included in the marital estate and should not be subject to division by the court in a divorce proceeding. Instead, whichever party owns the non-marital asset would keep that asset after the divorce.
Marital property refers to property that a couple acquires during their marriage. Where a couple lives determines the laws that govern the distribution of marital property in the event of divorce.
Non-Marital Property. Non- marital property is any real or personal property that was owned by either spouse before the marriage. During a divorce, non-marital property is often referred to as “separate property,” and is not subject to distribution between the spouses, but remains the sole property of the spouse who owned it prior to the marriage.
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate, and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the end of the marriage. Matrimonial regimes are applied either by operation of law or by way of prenuptial agreement in civil-law countries, and depend on the lex domicilii of the spouses at the time of or immediately following the wedding. (See e.g. Quebec Civil Code and French Civil Code, arts. 431-492.). In most Common law jurisdictions, the default and only matrimonial regime is separation of property, though some U.S. states, known as community property states, are an exception. Also, in England, the birthplace of Common law, pre-nuptial agreements were until recently completely unrecognized, and although the principle of separation of property prevailed, Courts are enabled to make a series of orders upon divorce regulating the distribution of assets. Civil-law and bijuridical jurisdictions, including Quebec, Louisiana, France, South Africa, Italy, Germany, Switzerland, and many others, have statutory default matrimonial regimes, in addition to or, in some cases, in lieu of regimes that can only be contracted by prenuptial agreements. Generally, couples marry into some form of community of property by default, or instead contract out under separation of property or some other regime through a prenuptial agreement passed before a Civil-law notary or other public officer solemnizing the marriage. Five countries, including the Netherlands, have signed on to the Hague Convention on the Law applicable to Matrimonial Property Regimes, which entered into force on 1 September 1992, which allows spouses to choose not only the regimes offered by their country, but also any regime in force in the country where at least one is a citizen or resident or where marital real estate is situated.
Map of the United States with community property states in red. Additionally, Alaska is an elective community property state, and of the five inhabited US territories, Puerto Rico and Guam are community property jurisdictions.Community property is a marital property regime under which most property acquired during the marriage (except for gifts or inheritances), the community, or communio bonorum, is owned jointly by both spouses and is divided upon divorce, annulment, or death. Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion for a particular piece of property. Division of community property may take place by item by splitting all items or by values. In some jurisdictions, such as California, a 50/50 division of community property is strictly mandated by statute so the focus then shifts to whether particular items are to be classified as community or separate property. In other jurisdictions, such as Texas, a divorce court may decree an "equitable distribution" of community property, which may result in an unequal division of such.
Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce. It may be done by agreement, through a property settlement, or by judicial decree. Distribution of property is the division, due to a death or the dissolution of a marriage, of property which was owned by the deceased, or acquired during the course of the marriage.