Some property may be both marital and non-marital. The most common example of this is with real estate or retirement accounts. For example, one spouse might have purchased a house prior to the marriage, but continued to pay down the mortgage during the marriage. In this case, the house is both marital and non-marital. Likewise, one spouse might have started contributing to a 401(k) or other retirement account prior to the marriage, and then continued making contributions to the same account during the marriage. The account will therefore be partly marital and partly non-marital. The burden of proof remains on the party asserting the partial non-marital interest to prove both its existence and its amount. For a retirement account, this will ordinarily require you to obtain documentation of the account balance on the date of marriage, and every statement thereafter (or at least every year-end statement thereafter). From these documents, an accountant can determine the extent to which the current balance of the retirement account is composed of premarital contributions, and the gain thereon, versus marital contributions, and the gain thereon. A common mistake is to simply use the balance of the retirement or other account on the date of marriage as the total premarital value. The problem with this approach is that it improperly excludes all of the gain on the premarital asset from the date of marriage to the present. For example, assume a party has an account worth $100,000 on the date of marriage. During the marriage, an additional $100 is added, thereby making it a partly marital account. Ten years later, the parties are divorcing, and the account is worth $200,000. Clearly, most of the gain is from the $100,000 premarital balance, and not the $100 marital contribution.
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