Property Division: Marital v. Separate Property

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Property Division: Marital v. Separate Property

iStock_000009402897XSmallProperty Division: What is the Difference?

When it comes to property division, The state of Missouri is an equitable distribution state. While most people think this means their property will be split exactly 50/50 during a divorce, equitable distribution can be best defined as “what the court considers fair”.

When it comes to equitable distribution, the court considers numerous factors, including:
-The economic situation of each spouse.
-Contributions of each spouse to the acquisition of marital property (including contributions as a homemaker)
-Conduct of parties during the marriage.
-Custodial situation of the children, if any.
According to MO statutes, marital property is all property acquired by either spouse subsequent to the marriage. Exceptions incluude:
– Property gifted, bequested, devised,or descended.
-Property acquired by exchange for the above-listed property.
-Property acquired by either one of the spouses after a Decree of Legal Separation.
-Property excluded by a valid written agreement of the parties.

It should be noted that a gift from one party to the other is considered separate property, for example, an engagement ring. If a party wishes to take claim to property that he/she claims was separate before the marriage, it is his/her burden to trace the property back to its original state. However, case law in Missouri has established that this is very difficult to do, given the threshold for proof is “by clear and convincing evidence” in this matter.

Where do I go from here?

The above definitions and guidelines are a good starting point when thinking about a divorce or a pre-nuptial agreement. Contact a local attorney for a more in-depth strategy on property division.

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