Divorce is a complex legal process that involves the dissolution of not only the emotional aspects of a marriage but also its financial aspects. While most marital assets are subject to division, there are certain assets that typically cannot be split in a divorce. Understanding the principles of marriage law governing the division of assets is essential for individuals navigating the divorce process.
1. Marital vs. Separate Property:
In the realm of divorce and asset division, the first distinction to understand is that of marital property and separate property:
a. Marital Property: This includes assets and property acquired during the marriage, and it is typically subject to equitable division between spouses. Marital property can include homes, vehicles, savings, and investments accumulated during the marriage.
b. Separate Property: Separate property comprises assets that are not typically divided in a divorce. It includes property owned by one spouse before the marriage, gifts or inheritances received by one spouse during the marriage, and any property explicitly designated as separate in a prenuptial agreement.
2. Assets Typically Not Divided:
Certain assets are generally not subject to division in a divorce:
a. Separate Property: As mentioned earlier, property that qualifies as separate remains with the owning spouse. This includes assets acquired before the marriage or received as gifts or inheritances.
b. Personal Injury Awards: Compensation received for personal injuries or pain and suffering is often considered separate property and is not typically divided.
c. Inherited Assets: Inherited assets that are kept separate from marital assets are usually not subject to division.
d. Property Addressed in a Prenuptial Agreement: If a prenuptial agreement outlines specific assets as separate property, those assets are typically not divided in a divorce.
3. Commingling of Assets:
It’s essential to note that the commingling of assets can complicate the determination of what is separate property. For example, if one spouse combines inherited funds with marital funds in a joint account, it may be challenging to distinguish the original separate property.
4. Factors That May Influence Division:
While the general principle is that certain assets are not divided in a divorce, there are exceptions. The court’s jurisdiction and the specific circumstances of the divorce can influence asset division. For example, if separate property was used to benefit both spouses or the marital estate, it may be subject to division.
5. Legal Consultation:
Navigating the complexities of divorce and asset division, especially when separate property is involved, often requires legal expertise. Consultation with an attorney who specializes in family law is advisable to ensure that your rights and interests are protected throughout the divorce process.
FAQs about assets that cannot be split in a divorce
What assets are generally subject to division in a divorce?
Marital assets, which include property and financial assets acquired during the marriage, are typically subject to division in a divorce. This can include real estate, bank accounts, retirement accounts, investments, and personal property.
Can assets owned before the marriage become marital assets?
In some cases, assets owned before the marriage can become marital assets if they are commingled with marital assets or if the owner’s spouse makes contributions to them. The treatment of such assets can depend on state laws and individual circumstances.
How can I protect my separate assets during a marriage?
To protect separate assets, it is advisable to maintain clear records of ownership and avoid commingling them with marital assets. Consider creating a prenuptial agreement or postnuptial agreement to specify the status of certain assets in case of divorce.
Can a court order the division of separate property?
Courts typically do not divide separate property in a divorce. However, in some cases, if separate property has been significantly commingled with marital assets, it can become subject to division. The laws and rules may vary by jurisdiction.
What role do prenuptial and postnuptial agreements play in protecting assets in divorce?
Prenuptial and postnuptial agreements are legal contracts that allow spouses to define how their assets and debts will be divided in the event of a divorce. They can be effective tools for protecting assets that might otherwise be subject to division.
Can assets held in a trust be divided in a divorce?
Assets held in a trust may be subject to division in a divorce, depending on the specific terms of the trust and the applicable laws in your jurisdiction. Trusts can be complex, so it’s essential to consult with legal professionals to understand how they may be treated in divorce proceedings.
How does the court determine the division of marital assets?
In most divorce cases, marital assets are divided equitably, but not necessarily equally. Courts consider factors such as the length of the marriage, each spouse’s financial contributions, and the needs of each spouse when determining the division of assets.
Is it advisable to consult with an attorney during a divorce to protect assets?
Yes, it is highly advisable to consult with an experienced family law attorney during a divorce, especially if you have concerns about asset protection or questions about the division of specific assets. An attorney can provide legal guidance and help protect your interests throughout the process.
Conclusion:
Divorce can be a challenging and emotionally charged process. Understanding the legal principles that govern asset division, particularly what assets typically cannot be split in a divorce, is vital for individuals going through this life-altering event. Recognizing the distinction between marital and separate property, as well as the potential factors that can influence division, can help individuals make informed decisions and seek legal guidance when necessary. Legal professionals specializing in family law play an essential role in ensuring that asset division aligns with applicable marriage law and is equitable for all parties involved.