Marital v. Nonmarital Property
Determining what constitutes marital and nonmarital property is not simple. In many instances, determining what is marital property can be a very black and white answer. In other instances, however, defining whether an asset is marital falls in a grey area. This generally occurs where property is a mix of marital and nonmarital assets.
| Property Type |
Marital Property? |
| Property and/or income produced by other property |
Possibly. It depends on the amount of active intervention on the part of either spouse. Additionally, whether the income is used for family purposes or not will factor into determining whether property is marital. |
| Increases in value of property, including business interests |
Possibly. It depends on the level of active intervention by at least one spouse during the marriage. |
| Increases and improvements to marital property |
Yes, unless improvements caused by non-marital investments |
| Property whose ownership is traceable to the ownership of marital property |
Yes |
| Permanent improvements to mixed or nomarital property |
Yes, if the improvements are paid with marital funds |
| Property owned as tenant by the entireties or jointly |
Possibly. Whether real property held jointly or in the entireties becomes marital property depends on whether at the acquisition of the property or later, one spouse wanted to make a gift to the other. If so, then the property will be considered marital property ... Tenants by the entirety becomes marital property in action filed after 1994. Joint property based on intent. |
| Pensions and retirement benefits |
Yes, if acquired or earned during marriage and whether vested or not vested |
| Disability Benefits |
Yes, even if the injury has not occurred or occurs when divorced |
| Military retirement benefits |
Yes |
| Military disability pay |
No |
| Veterans Administration disability pay |
Yes |
| Railroad retirement benefits |
Yes |
| Civil service retirement benefits |
Yes |
| Foreign service retirement benefits | Yes |
| Disability retirement |
Possibly, depending on the circumstances |
| Personal injury claims |
No, except where awards are granted to pay for loss of consortium, lost wages, and medical expenses. |
| Worker's compensation claims |
Yes, if the injury causes a loss of wages and future earning capacity. It is also marital property if there are medical expenses paid for through marital assets and there was a loss of consortium. The amount awarded to the non-injured spouse will only be the amount accumulated until the dissolution of the marriage. |
| Professional educational degrees and licenses |
No |
| Life insurance policies |
Yes, if premiums are paid with marital assets which increases the policy's value |
| Dissipated marital property |
Yes |
| Normal appreciation of marital property |
Yes |
| Partnership interest |
Possibly. It depends on the source of funds used to acquire the interest and whether any increase in value was due to the active participation of the spouse during marriage |
| Interest in partnership property (i.e., held as tenants in partnership) |
No |
| Remuneratory gifts (e.g., stock given to employee for Christmas) |
Yes. Such a gift is in the form of a bonus and therefore considered income earned during marriage |
| Unexercised stock options |
Yes. These are like other benefits provided to an employee in their compensation package |
| Unexercised pre-emptive right to purchase stock |
No |
| Jewelry |
Possibly. Depends on whether the jewelry was acquired during marriage and how it was acquired |
| Future earning capacity |
No, unless as compensation for an injury |
| Reputation of the professional |
No |
| Reputation in general |
No |
| Goodwill |
It depends. Commercial goodwill (i.e., the goodwill of a trade or business) is marital property while professional goodwill (i.e., goodwill of a professional engaged in a professional practice) is not. However, the goodwill of the professional practice itself is marital property where it is independent from the reputation or continued presence of the professional. |
| Anticipated renewal commission on insurance policies |
Yes |
| Accrued holiday and vacation leave |
No |
| A gift to both parties |
Yes |
| Security deposit |
Yes |
| Lottery winnings |
Possibly. In general, lottery winnings are marital property if acquired while married. Depending on the facts of the case, it may not be marital property if acquired while separated. |
| Spendthrift trust |
Yes |
| Forgiveness of marital debt |
Yes |
| Nonmarital intra-spousal gifts |
No. As to divorce actions after 1994, marital property does include real property held as tenants by the entirety, even if they were originally non-marital. |
| Social security benefits and/or contributions to |
No |
| Survivor annuity benefits |
Yes |
| Contingent interests |
Yes |
| Income generated during the marriage |
Yes, including any funds used to purchase, or generated from, investments |
| Beneficiary's interests in an irrevocable life insurance trust where insured is still alive |
Yes |
Further Information on Division of Property:
- Division of Property/Monetary Awards
- Monetary Award Factors
- Determining a Monetary Award
- Marital v. Nonmarital Property
- Dissipation of Assets
- Employee Benefits
- Use and Possession Awards
- Frequently Asked Questions
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