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Property Division FAQs

1. Which of my assets and liabilities are marital?

Marital assets and liabilities include: (i) assets acquired and liabilities incurred during the marriage; (ii) the enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the course of the marriage or from a contribution to or expenditure thereon of marital funds or other forms of marital assets, or both; (iii) interspousal gifts during the marriage; (iv) all vested and unvested benefits accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs; and (v) all property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.

2. Which of my assets and liabilities are nonmarital?

Nonmarital assets and liabilities include: (i) assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; (ii) assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets; (iii) all income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset; (iv) assets and liabilities excluded from marital assets and liabilities by a valid written prenuptial or postnuptial agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and (v) any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse.

3. What is the date for determining when assets or liabilities are marital?

The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of: (i) the date the parties enter into a valid separation agreement, (ii) such other date as may be expressly established by such agreement, or (iii) the date of the filing of a petition for dissolution of marriage.

4. Under what circumstances can I obtain an unequal division of property and assets that we accumulated during the course of our marriage?

In distributing marital assets and liabilities between the parties, the Court begins with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including: (a) the contribution to the marriage by each spouse; (b) the economic circumstances of the parties; (c) the duration of the marriage; (d) any interruption of personal careers or educational opportunities of either party; (e) the contribution of one spouse to the personal career or educational opportunity of the other spouse; (f) the desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party; (g) the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties; (h) the desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction; (i) the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years prior to the filing of the Petition for Dissolution of Marriage; and (j) any other factors necessary to do equity and justice between the parties.

5. Do I have to wait until after my divorce complete to obtain access to marital property?

If the court finds good cause that there should be an interim partial distribution during the pendency of a divorce action, the court may enter an interim order that will identify and value the marital and nonmarital assets and liabilities made the subject of a sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities. An interim order will be entered only upon good cause shown and upon a sworn motion establishing a specific factual basis for the motion. The motion shall demonstrate good cause why the matter should not be deferred until the final hearing. The court must make specific findings in any interim order that any partial distribution will not cause inequity or prejudice to either party as to either party’s claims for support or attorney’s fees. The term good cause means extraordinary circumstances that require an interim partial distribution.