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Division of Marital Property

Kevin Hickey

The question of property and how it is divided arises during a divorce. The short answer is that the property obtained after the marriage will be divided equitably between the two spouses, but as with all matters concerning the law the short answer is not applicable.

First one must consider whether the property is marital property or separate property. Marital property includes most assets and debts a couple acquires during marriage. Separate property includes:

  • Items purchased with or exchanged for separate property
  • Earnings on separate property
  • Any increase in the value of the separate property
  • Disability benefits received from a personal injury claim if for permanent disability or future medical expenses.

Separate property can be converted to marital property by changing title from individual to joint ownership. In this case, the court presumes the spouse intended to make a gift of the property to the marriage. Commingling is another way to convert separate property to real property. Commingling simply means to combine separate assets. This is done either intentionally or unintentionally. For example, an account owned by a spouse before marriage becomes marital property if the other spouse makes a deposit to it.

Equitably does not always mean equally. If a judge believes that an exact equal division would be unfair, he or she can divide the property in a different proportion. In Arkansas, the court will decide the equitability based upon the Equitable Distribution Law. Under this law the factors used to determine the proportion are:

  • Length of the marriage
  • Each spouse’s age, health, and station in life of the parties
  • Each spouse’s occupation
  • Amount and sources of income
  • Job skills
  • Employability
  • Estate, debts, and needs of each party and opportunity of each for further acquisition of capital assets and income
  • Each spouse’s contributions to the acquisition, preservation, or appreciation of the property, including homemaking
  • Federal income tax consequences of the property division.

Once the court has divided the property based upon the factors listed, it must give its basis and reasons for not dividing the property equally.

Property that was owned prior to the marriage will be returned to the party that owned it before the marriage unless the court makes some other determination based upon the factors above. An example that a court might do this is if a spouse owned a home before the marriage, but after marriage, a substantial amount of money was invested to the remodel the home. In this case, a court would consider the contribution and the value added to the home.

This law applies to both real and personal property. However, if the division of real property cannot be done equitably or would show great prejudice to a party, the court will order a sale of the real estate. The proceeds after deducting the debt against the property (if any), cost and expenses of the sale will be divided in proportion to their respective rights in the premises.

There are a few exceptions to the marital property after marriage rule and they are:

  • Property acquired by gift or by reason of the death of another, i.e., life insurance proceeds, payments made under a deferred compensation plan, an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or a payable on death or a transfer on death arrangement
  • Property in exchange for property acquired by gift, bequest, devise, or descent
  • Property acquired by a spouse after a decree of divorce
  • Property excluded by valid agreement of the parties
  • The increase in value of property acquired prior to marriage or by reason of the death of another, i.e., life insurance proceeds, payments made under a deferred compensation plan, an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or a payable on death or a transfer on death arrangement
  • Worker’s compensation claim benefits, personal injury claim, or social security claim benefits either received or to be received if they are for any degree of permanent disability or future medical expenses
  • Income from property acquired prior to marriage or by reason of the death of another, i.e., life insurance proceeds, payments made under a deferred compensation plan, an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or a payable on death or a transfer on death arrangement

If either party is involved in a bankruptcy, proceeding the court is not required to address the division of property at the time a divorce decree is entered.

For more details regarding your property division, contact Kevin Hickey Law Partners today.

 

References:
https://law.justia.com/codes/arkansas/2010/title-9/subtitle-2/chapter-12/subchapter-3/9-12-315/