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DIVORCE 101 – Marital and Separate Property

By July 23, 2014July 21st, 2023Alan Freed Featured, Divorce

By Alan Freed

When you’re going through a divorce you need to make a complete list of what you own, what it’s worth, and what you owe. That information will end up on a form that is filed with the court. It also becomes an important tool for your lawyer to use in helping you determine how you and your spouse will be dividing the “marital estate,” that is, your real estate, financial accounts, vehicles, retirement, investments, business interests, and debts.

Your lawyer will also be trying to determine which items of property are “marital” and which are “separate” or “non-marital” property. Missouri’s law (as well as that of Illinois) makes a distinction between property you acquire during the time you are married, which is referred to as “marital property,” and property you acquired before the marriage, which is referred to as “separate property.” Marital property will be divided between the husband and wife; separate property will simply be retained by the person who already owns it.

It makes no difference whether the title to the property acquired during the marriage is in your name alone or if it is titled jointly with your spouse—it’s all considered marital. It also makes no difference whether the property was purchased with your income or your spouse’s, because, in addition to property that you acquired during the marriage, any income you receive during the marriage, no matter which one of you earned it, is also considered marital.

There are a few exceptions to this rule: gifts and inheritances are considered separate property. Missouri public school retirement is also considered to be separate property and cannot be divided by a court. Prenuptial agreements can also make a difference.

Some property will be both marital and separate. For example, if you started building a retirement account (IRA, 401(k), pension) before you got married and then continued contributing to it during the marriage, that account will be a combination of marital and separate property. If you use some of your separate money to purchase property during the marriage, the property you purchase may be considered to have a marital “component” to it.

As you can see, figuring out what is marital and what is separate is not always a simple matter of drawing a dividing line between what you had before you were married and what you obtained during the marriage. An experienced divorce attorney can assist you in performing the sometimes complicated analysis to make this important distinction.


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