In this article, we will discuss what are the types of property in a divorce case or non-marital property and commingled property. Also, introduce you to the joint statement of parties concerning the marital and non-marital property and you’ll learn about what the courts can and cannot do with your property. Finally, I talk about a special process for pensions and retirement assets.
Even if you and your consort go to mediation or work out an agreement, you should know how the court will deal with your property in a divorce.
That way, you are knowledgeable when you sit down to work out an agreement.
To learn more about the mediation process, check out “ What happens after mediation settlement? ”, available in English.
So let’s get started with a definition of marital property.
What is Marital Property
Marital property is property acquired during your nuptial regardless of how it is titled or who paid for it.
It may include houses, cars, furniture, appliances, stocks, jewelry, bank accounts, and retirement plans. It includes property acquired from the date of your nuptial until the date your divorce is final.
If you or your consort acquired property during separation, it is still considered marital property.
What is Non-marital Property?
The property you or your consort acquired before your nuptial is non-marital or separate assets, so are gifts or inheritances given to only you or your companion.
Property directly traceable to the non-marital property such as items purchased with money from an inheritance is also non-marital property.
Those aren’t the only two types of property in a divorce case.
Other Types Of Property
Sometimes, the properties can be both marital and non-marital.
For instance, if you or your consort bought a house before nuptial, it is non-marital property. But when marital funds are used to pay the mortgage, your home becomes part marital and part non-marital property.
Commingled Marital Property
Commingled marital property is when a non-marital property is mixed with marital property. the court may determine that the property is now marital.
When deciding how to distribute property during the divorce process, identify all types of property and debt, and determine your property’s value.
You and your consort can decide how to divide your property or whether one consort will pay the other a monetary award. If you and your consort agree on property distribution, you may submit your agreement to the court.
If you do not agree, you must complete a joint statement of parties concerning the marital and non-marital property.
Joint Statement Of Parties Concerning Marital and Non-marital Property
The joint statement or form CC-DR-033 must list all property owned by you, your consort, and both of you.
On the form, you each indicate whether you agree or disagree on what is marital and non-marital property. Submit this form if you and your consort want to ask the court to determine how your property will be divided.
When the court determines property distribution, it has some limits on what it can do.
What the Courts Can and Cannot Do With Your Property?
The court can order the sale of joint property such as houses or cars with an equal division of the proceeds from the sale.
The court can’t transfer a title from one consort to the other if the property is owned individually. But it can order one consort to transfer ownership of your jointly owned home to the other consort.
Even though the court cannot transfer the title, the court can require one party to compensate the other for the value of that item if it is considered marital property.
The court cannot transfer debt from one person to another.
So for example;
If you took out a car loan in your name only, the court can’t make the other person make those car payments. The court also may transfer interest in a pension or ownership of the personal property from one consort to the other.
A Word About Pensions
Pension or retirement benefits earned during your nuptial are marital property. If a portion of the benefit was earned prior to your nuptial. It may be considered part of marital and part non-marital.
One consort may be eligible for a share of the other’s pension or retirement benefit. This is one area of divorce in which you should consult a lawyer. You will need a lawyer’s help to evaluate your rights to any retirement benefits and if eligible to draft a special court order that will be used to distribute those benefits.
That was a lot of information. If you and your consort own significant property, have retirement assets, or own a business, you really should consult with a lawyer.