When it comes to property division, there is no predetermined factor – other than a stipulated divorce – that will dictate absolutely every facet of the final decision. In fact, there are numerous components and aspects which factor in to a final decision when it comes to the division of property. Everything of value or worth is factored into property division. Any and all things belonging to a married couple is subject to a property division award. The goal of the courts is to provide a relatively equal net worth to both party’s upon the dissolution of the marriage. There are several ways this decision becomes more difficult. One of them is whether the said property is inherited, or gifted property.

The general rule of thumb is that inherited property, gifted property, or property already owned before the marriage may be kept by the party to which it was gifted, inherited, or previously owned. Although, this is not always cut-and-dried. There are many factors that are taken into consideration before a judge renders a final decision. The primary factor that must be addressed is the distinction between whether the property is considered separate or marital.

This is where sometimes this distinction becomes muddied. If an individual inherits property or is simply gifted property during the marriage, it is their separate property if the property is not used for joint purposes, the property is registered, licensed, or deposited in only the individual’s name or private account. If this inherited property becomes comingled with what is considered to be marital property, it may then become divisible marital property.

Another way that inherited, gifted, or pre-owned property may possibly become divisible marital property, is when a spouse has contributed to the appreciation of said property, or if they have contributed significantly to maintenance or upkeep. Situations like these may blur the line between what is separate, and what is divisible. When one spouse has contributed to a gifted, inherited, or pre-owned property, it could then become arguable that the condition or current existence of the property could only be obtained through the involvement of the non-owning spouse. Further, it could be argued that the non-owning spouse has in some way become vested in the property. Perhaps claiming the understanding that the property belonged to both parties.

Regardless of the specific circumstances, if you pre-owned, were gifted, or inherited property, whether it be monetary or physical property, you must adhere to the distinction between separate, personal property and joint, marital property in order to keep the property division area of your divorce very clear.

Dan Exner, J.D.

Family Law Attorney

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