What is the Difference Between Marital and Non-Marital Property?

During a divorce there are three types of property that the court will consider; marital, non-marital and a combination of those two types of property.  The court will start with the presumption that all property acquired from the date of the marriage to the date of the divorce decree is marital property and, thus, subject to division.  Courts will often enforce this presumption in some fairly harsh ways, so it is important that you talk with your attorney before you make any major purchases during your divorce or you may have to share it with your estranged spouse.  It is the marital property that the court will divide as we discussed in an earlier post.

Non-marital property is not divided in a divorce, but is, instead, assigned to its owner.  Non-marital property basically falls into three main categories.  The first is that it was owned, debt-free, prior to the marriage.  The second is that is was acquired by a gift, even a gift between spouses.  The last most common type of non-marital property is property acquired by an inheritance.  Keep in mind that this is a very simplified explanation of this concept.  Non-marital property can also include increases in value of non-marital property that was not the joint efforts of the parties, property defined as non-marital by agreement of the parties, or non-marital property that was sold or traded for another piece of property.
Property can also be a combination of marital and non-marital property, this is particularly true in Kentucky.  Kentucky has adopted the "source of funds rule."  This means that Kentucky's family court must determine the source of funds used to acquire the property (or equity in the property) and assigned a value to the property in proportion to the marital contribution versus the non-marital contribution.  This can get very complicated and requires detailed documentation to prove your non-marital contribution.  Illinois is much more strict on maintaining non-marital property's identity and has yet to recognize a source of funds rule.

In reviewing the property to be divided, it is vital that you gather as much information to document your non-marital claim and that you go over it in detail with your family law attorney.  If you have more questions, contact the Alford Law Office.

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