What Is Marital Property As Opposed To Non-Marital Property?
In the context of divorce, there are two types of property: martial and non-martial. In some states, this distinction is very important because the two types of property are treated quite differently. Even in states that do not follow the distinction strictly, the difference may be very persuasive to a court in determining how to best divide property for a divorce.
Marital property is generally all property acquired by a couple after their marriage. Each spouse has an ownership interest in this property. The extent of this interest (how much of the property each spouse owns) is determined by the court during the divorce. These ownership interests are extinguished upon decree of the court in the form of the property division outlined in a final order for divorce.
The interest that each spouse holds in martial property is recognized upon filing a petition for divorce. At that point, the martial property belongs to each party and cannot be destroyed, sold, or disposed without consent from each. This also includes debt-collection activities, such as attaching a lien to a home for one party’s debts. The other spouse’s interest in the martial property “pushes past” any debt obligation that is created after the filing for divorce, and the creditors must wait until the court resolves the property division to act in collecting the property.
Property that was purchased before marriage by either party is excluded from martial property. Non-martial property also includes property that one spouse receives individually as a gift or individually inherits. In addition, any gains from non-martial property remain the non-martial. Thus, if a spouse owned a rental property prior to marriage and earns income from that property, that rental income will be considered non-martial property as well.
In some states, including Kansas, the non-owner spouse gains an interest in non-martial property upon filing of the petition for divorce. Thus, even though non-martial property may clearly seem to “belong” to one party, it is still protected from encumbrances such as liens and other debt-collection activities that are initiated after filing the petition for divorce. However, this positive effect has another side: the protection offered to the property comes from the other spouse’s interest in the property, and this interest means even this non-martial property is vulnerable to “equitable distribution.”
In states that follow “equitable distribution” property division—such as Kansas—the divide between martial and non-martial property is not as prominent as in “community property” states. All property, not just martial property, is available for division during a divorce. However, a court will likely find the fact that property is martial or non-martial helpful in determining how to most fairly distribute property. But that is only one fact the court looks at when deciding how to divide property. K.S.A. § 23-2802 outlines several factors a court should consider when dividing property. These include: (1) age of the parties; (2) length of the marriage; (3) property owned; (4) present and future earning capacities; (5) whether the property is martial or non-martial; (6) family obligations for each spouse; (7) maintenance (alimony); (8) squandering of assets by a spouse; and (9) taxes involved with dividing property. The court may also consider other facts in its task of achieving a “just and reasonable” division of the property.
The ultimate goal of dividing property is fairness, not equal amounts of property to each spouse. A fifty-fifty division is not required, and can even be improper if the court does not consider the required factors. A court is given great leeway in determining what is a fair and reasonable for each case. Both sides are encouraged to work out the distribution of property amongst themselves, but the court will still ensure that the division is reasonable.
Keeping Non-Martial Property
As courts do have the power to order non-martial property be transferred or sold, it is possible that property owned by one spouse prior to a marriage will be given to the other party upon divorce. However, courts generally recognize the inherent tension in this idea and will work with parties to reach an agreeable result. The key is understanding the trade-off that will have to occur. The court is determined to reach an equitable distribution in terms of monetary values, so the exact property that each party is given is less important to the court and possibly more important to the spouse that owned the property.
For example, imagine Spouse 1 has a piece of jewelry given as a gift pre-marriage. This is non-martial property, as it was acquired by gift pre-marriage. A debt collector for Spouse 1 is free to attempt to have this property levied by the local sheriff to satisfy that debt. As soon as Spouse 1 files for divorce, Spouse 2 gains an interest in the jewelry; this occurs even though the jewelry was non-martial property that Spouse 2 never had an interest in prior to filing. The only way to terminate this interest is by decree of the court once the divorce is finalized. Further debt collector cannot now “jump ahead” of Spouse 2 by asking the sheriff to levy the property, because it “belongs” to both spouses now.
Spouse 1 may have a great emotional tie to this jewelry, regardless of its value. If the objective value of the jewelry is minimal, there will likely be no issue with Spouse 1 keeping the property. However, if the jewelry is quite valuable, Spouse 1 is going to have to give up a large amount of martial property to Spouse 2 to compensate for the interest Spouse 2 has in the valuable jewelry. This can lead to having to “buy out” property that Spouse 1 feels rightfully does not “belong” to Spouse 2 in any sense. But that is the price that must be paid to maintain specific property through the divorce.
Division of property can be one of the most difficult aspects of divorce proceedings. Each side likely has property he or she believes should be his or hers alone, but the law simply does not share that view. Instead, all property must be divided, and it requires clever working to ensure both an equitable results required by law and a desirable result for the spouse. This is why it is so important to have experienced legal counsel to help negotiate and plan out the division of property.
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