Marital and Separate Property in Divorce

July 30, 2015 3:01 pm

When you are married, some of your property remains separate and some becomes marital property. If you later divorce, an Oklahoma judge will divide this marital property between you and your spouse. This division is known as equitable distribution. Equitable distribution does not mean that each spouse gets an equal share. Rather, equitable distribution meansMarital and Separate Property in Divorce that the distribution must be just and fair. There are ways that you can protect certain property from your spouse in the event of a divorce, such as your family business. However, it is first vital to understand the difference between marital and separate property in divorce. This is important because whats yours before the marriage remains yours.

Whats Marital and Separate Property in Divorce:

Generally, property that you acquire prior to the marriage is separate property. Some separate property can become marital property if there is an intent to give your spouse an ownership interest in the property. For instance, if you purchase a house prior to the marriage but add your spouse’s name to the deed when you marry, the house becomes marital property. If you purchase a house prior to the marriage but your spouse begins making all of the mortgage payments when you marry, the house becomes marital property. In addition, you may use a prenuptial agreement to turn some separate property into marital property.

Finally, if you mix your personal property with your spouse’s personal property, the property becomes commingled. When the property is commingled, it becomes marital property. One example is when two spouses open up a joint bank account and transfer the funds from their personal accounts into the joint bank account.

Likewise, marital property is usually property that you acquire during the marriage. The spouses become joint owners of the property and share an equal ownership interest. However, some property acquired during the marriage remains separate. For example, if you receive an inheritance or gift, this remains separate property. If you purchase property with your own money that you had prior to the marriage and title it only in your name, this property is separate property.

Who Decides Whats What:

When you file for divorce, you can agree with your spouse on how to divide up assets using a marital property agreement. However, if agreement is impossible, the court can review your assets and debts and make this determination for you. The court will first create a list of all marital property eligible for equitable division. The court will then determine how to fairly and reasonably divide the property.

Oklahoma is not a community property state. In a community property state, the court divides assets 50/50. In Oklahoma, the court has discretion as long as its distribution plan is just. The court will often consider income, debt, alimony, disabilities, parenting responsibilities, and more when deciding how to divide the assets.

How the Law Values Marital Property:

In valuing the divorce estate, the court adds up all marital property and subtracts the couple’s debts. The marital debts pay out from the divorce estate. Then the court distributes the remainder. Distribution of cash is always simple. However, some property cannot divide easily, such as houses. The court will use principles of equity to determine how to best divide up physical property in a way that is fair to the parties. If both parties are amendable to selling the house, the court will sell the house and distribute the proceeds.

You may also find our article on dividing debts in a divorce useful.

If you are worried that some precious assets that you have worked long and hard for may be garnished by your spouse in a divorce, you need to take steps now to preserve and protect those assets from being considered communal property.

The most common fear is that a family business becomes disbanded or garnished in a divorce. If your spouse does not work for the family business, you can place the business into a trust. Appoint someone you trust as a trustee to oversee the distribution of funds. You can then arrange for a set amount to be distributed to you monthly to pay for your living expenses. Because the business is now owned by the trust and not by you personally, it is not part of your assets and cannot be confiscated in a divorce. You can also set up a trust to automatically transfer to a designated heir when you pass on.

Free Consultation, Find Out About Marital and Separate Property in Divorce:

If you are suffering through an Oklahoma divorce call our Tulsa divorce attorneys and get a free consultation. Determining the marital and separate property in divorce is a complex question requiring careful consideration. Call us today and let us give you the legal advantage you need.