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Protecting NON-MARITAL Assets in a Divorce

NON-MARITAL PROPERTY

As discussed in the "Marital Property" section, anything that you acquired during the marriage is usually considered marital property.

NON-MARITAL PROPERTY is an important exceptions to this general rule.  We're talking about anything you owned before the marriage, anything that was inherited by you before or during the marriage and anything which was a gift specifically to you for your exclusive enjoyment (i.e, diamond earrings, fur coat, etc.) 

In Kentucky Family Law practice, we use a process known as "tracing" to determine the value of a non-marital asset at the time of marriage and at the time of divorce as well as determining the percentage for each characteristic (marital versus non-marital).

In order to succeed at getting property reclassified as your non-marital property, you must be prepared to show the court:

  • That you owned the property before you got married to your present spouse;
  • That the property was a gift to you individually from someone other than your spouse during the marriage;
  • That you inherited the property before or during the marriage;
  • That the property was bought with money from the sale or transfer of property described in (1), (2) or (3) above; or
  • That the property was excluded by a valid legal argument.

Examples of non-marital property can include cars, boats, motorcycles, houses, real estate, cabins, farms, bank accounts, stocks, certificates of deposit and businesses owned by you or in which you had an interest before your marriage.

The court must first assign non-marital property to the appropriate party before proceeding with the balance of the case.

Titles to your pre-marital car, credit card receipts, cancelled checks, deeds, wills, and similar documents are what is needed if your attorney is going to trace property for you.

Not having these documents does not mean you will not be able to get your property back, it may just make it more difficult.

Tracing can get really tricky when you had property of some kind before you got married and then sold the property and mixed the money you got from that sale with money you earned during the marriage to buy something else.

With proper documentation, your lawyer may be able to get the value of your non-marital contribution to the purchase of the property back for you.

This scenario frequently happens when two people sell their respective homes they lived in before the marriage and buy a new home.

Our courts have been faced with this problem so many times that the Supreme Court, in the 1981 decision in Brandenburg v. Brandenburg, developed a formula for determining the marital and non-marital interest in the home(s). This formula is now used almost exclusively across the state.

IMPORTANCE OF IDENTIFYING NON-MARITAL PROPERTY

Completion of a Non-Marital Inventory is extremely important. This is your opportunity to stake a claim on all the things you owned before your marriage and that were given to you as gifts as well as property inherited by you and bought with money you obtained through any of the above.

Remember, however, that many of the items you claim to be non-marital will require proof that you obtained them before the marriage, as a gift exclusively to you, as an inheritance or purchased with funds from one of those sources.

For example, if you inherited your father's farm three years ago (before or after your marriage), you may need your father's Will to prove it was an inheritance. On the other hand, if your mother gave you a family heirloom such as her mother's china, you will need a letter from your mother or someone else knowledgeable about the circumstances as proof it was a gift to you and you alone, perhaps with the understanding that you would pass it on to your daughter when she married.
Finally, as you begin to list the non-marital property you are claiming, you must attempt to give each item a value. The value should take into consideration each item's age and condition.

Unfortunately, we cannot translate your sentimental attachment to Aunt Betty's stuffed armadillo into monetary unless it is a true antique. Its true worth is probably what you could sell it for in a yard sale or auction.

Every Family Law situation is unique.  But there are many techniques we can utilize to protect your interests in non-marital assets.  Please talk to us about these concerns during your initial consultation.