Divorce and Division of Property
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One of the essential parts of obtaining a divorce in Missouri is dividing the property of the spouses. Some common misconceptions involving the division of marital property are that each party automatically keeps what they acquire after the parties stop living together, or that the Court often awards the vast majority of property to one party.
This article provides a basic overview of the process of
property division, and the factors that a Court is required to
The Two Step Process for Division of Property
The Court follows a two step process in dividing property. First the Court must determine which property is non-marital property and which property is marital property. The Court cannot change ownership of the non-marital property, and must set aside the non-marital property to each party. The court then must consider the factors outlined below to make an equitable distribution of the marital property.
The Court presumes that all property owned by the parties is
marital property, subject to division, except for the following
categories of non-marital property:
- Property that a party received by gift to that party individually;
- Property acquired by a party prior to the marriage, or property exchanged for property acquired by a party prior to the marriage;
- Property acquired by a party following a Court Judgment of Legal Separation;
- Property excluded by a valid written agreement of the parties (prenuptial agreement); and
- The increase in value of property during the marriage that falls under categories 1-4 above
The status of property as non-marital property must be proven by "clear and convincing evidence."
Transmutation of Non-Marital Property
Even property that falls under one of the categories of non-marital property discussed above can at times be converted into marital property. If previously non-marital property becomes marital property during the course of the marriage it will be subject to division by the court.
There most common circumstances under which non-marital property may be converted into marital property are as follows:
- Gifting or jointly titling non-marital property in both parties names
- Commingling of non-marital property
- Applying marital income to payment of loan on non-marital property
Division of Marital Property
Once the Court has set aside to each party their non-marital property, it may divide the marital property between the parties. The Court is required to make an "equitable" but not necessarily equal division of such property. The Court is required to consider the following five factors, and any other relevant factor, in making such determination:
- The present financial circumstances of each party at the time of dissolution, including the preference for awarding the marital home or right to live therein for a reasonable time to the party having custody of the children
- The contribution by each spouse to the purchase or upkeep of the property, including the contribution of a spouse as a homemaker
- The value of the non-marital property retained by each party
- The conduct or misconduct of either party during the marriage
- The care and custody of the children of the parties
There is no set formula for giving weight to the five factors, and the factors are not exclusive. The Court may actually consider any additional factors which it deems relevant. However, the factors outlined above still provide a good basis for many of the considerations that the Court is required to make.
While the Court as a general rule starts from the assumption that an equal property split is fair, any relevant factor may lead the court to conclude that a more uneven split is equitable. This is why it is important to obtain an experienced, knowledgeable attorney to represent your interests in any divorce proceeding. An attorney can help you to identify marital and non-marital property, place a value on the property, and present to the court all evidence that weighs in favor of you being awarded a greater property share.
Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free consultation.
All situations are unique and deserve one-on-one attention. Call me or stop by for a free consultation to discuss your specific case. — Christopher Braddock, Attorney at Law