In a divorce, some assets may be considered non-marital and, as a result, are not divided in a divorce proceeding.

What is the marital estate?

In a divorce, the parties divide up what is called the "Marital Estate". The marital estate includes any assets or debts that the parties own at the time of the divorce. Each spouse is deemed to have an equal interest in marital assets or debts. This is true no matter how property is titled or held and no matter which spouse's job paid for the asset or which party incurred the debt. That means the marital estate includes a 401K account or credit card debt that is in your spouse’s name alone. In fact, marital property is inclusive and encompasses 401K plans, stock plans, stock options, real estate, frequent flier entitlements, bank account proceeds, couches, chairs, cars, utility debts, credit card debts and any other form of asset or liability.

What are categories of non-marital assets?

Some states have classifications of property that are exceptions from the marital estate that is divided. These assets are often called non-marital assets. Any non-marital assets that you possess remain yours and any non-marital assets of your spouse remain his/her assets. Among states that take this approach, some listed non-marital classifications include:

  • Premarital. Any asset acquired before the marriage (if the asset was encumbered by a loan that was paid off during the marriage, it may only have a partial non-marital value);
  • Prenuptial Exclusions. An asset excluded by a valid prenuptial agreement;
  • Personal Injury Proceeds. Personal injury settlements are generally considered personal to the injured party and are non-marital in nature. Some states also include Social Security benefits, Worker's Compensation and Disability in this category;
  • Inheritance. Any proceeds or assets from an inheritance;
  • Gifts. Any asset acquired as a gift to one, but not both.

Losing Non-Marital Status

It is possible for non-marital assets to have both a marital and non-marital value. In some cases, non-marital assets may lose their non-marital characteristic. This can occur in several ways:

  • Commingling: If non-marital proceeds are co-mingled with marital proceeds so that it becomes difficult to identify the non-marital asset, the non-marital characteristic may be lost. For example, placing non-marital proceeds in a joint bank account may not immediately eliminate a non-marital interest. However, if marital proceeds are added to the bank account or if proceeds from the account are paid out for regular living expenses, it is more likely that the non-marital value will diminish since it is impossible to determine which proceeds came out first - the marital proceeds or the non-marital proceeds.

  • Marital Improvements: Additionally, spending marital money (any money earned by either party during the marriage) to improve a non-marital asset may also create a partial marital interest in an otherwise non-marital asset. The increase in the value of the asset attributable to the improvement is likely to be considered marital.

  • Appreciation: The Courts make a distinction between "active" and "passive" appreciation. Passive appreciation of a non-marital asset remains non-marital. Passive appreciation occurs when an asset increases in value without any action by the parties. For example, if the value of real estate increases without the parties improving the property, it is considered passive. Active appreciation is a marital asset. Active appreciation occurs when the value of an asset increases because of an act by the either of the parties during the marriage. Capital improvements to real estate during a marriage may create a marital interest since a capital improvement is likely to add to the property’s value. Manipulating a stock account or transferring a mutual fund from one account to another resulting in an increase in value may also be "active appreciation" which creates a marital interest in an otherwise non-marital asset.

Tracing Non-Marital Value

Non-marital assets may often be "traced" into later acquired assets giving the party with the original non-marital interest a non-marital interest in the new asset. For example, if one spouse owned a vehicle before marriage and that vehicle is later traded in for a new vehicle during the marriage, that party may be able to trace a non-marital interest in the new vehicle. Tracing is really the process of establishing a sufficient paper trail to claim a non-marital interest in a subsequently purchased asset.

Often, presenting a persuasive property case depends on clear cut documentation, and expert testimony.