Far too often I meet with a client for consultation who is concerned that a certain asset is not a marital asset because it is not “in [their] name.” A client may say “well, we have a home but it is in his name only” or “I don’t have a retirement account, but she does.” It’s very important to know that the owner of an asset is not determined by whose name it is held in. The Court looks to each asset individually to determine whether it is a marital asset.
Whether something is a marital asset is an important factor because it affects division of the assets during a divorce proceeding. Generally, a marital asset will be divided by the parties upon divorce. An individual asset will not. Therefore, this is a very important determination in a divorce proceeding particularly where there is a large asset or an asset that can be argued to be marital or individual.
Generally, a marital asset is one that has been earned, purchased, grown or received during the marriage. It does not matter in whose name the asset is held. More important is when it was received, how it was nurtured and if it was an asset that was woven into the fabric of the marriage.
For some assets, this decision is rather clear. For example, if you purchased a home just after marriage and paid the mortgage and expenses with joint funds, then this home is a marital asset. Presumably, you and your spouse would divide the equity in the home upon divorce.
For other assets, this decision is not clear at all. There may be an asset that was acquired prior to the marriage but was increased during the course of the marriage. For example, a wife may have had a retirement plan that she started prior to marriage but continued to contribute to during the marriage. There may be an asset that was acquired during the marriage but held entirely apart from the marriage. For example, perhaps the husband received an inheritance but sheltered it from his wife. For these assets, you must argue to the Court why you feel the asset is marital, or individual, and convince the Court using the facts, circumstances and current case law and your suggested division of this asset.
Since there is no hard and fast rule or formula to determine whether something is a marital asset, you are best advised to speak with an attorney about your assets to determine one by one which assets are marital and which are individual. From there, you can make decisions about the distribution of these assets and if need be, make arguments to the Court. For assets that can be argued as marital or individual, an attorney’s argument may help the Court to determine whether this asset, or a portion of it, is deemed a marital asset.
Distribution of assets is a very important step of your divorce. It determines with what assets you leave the marriage to begin your new life. Take this step very seriously and fight for those assets that are yours.