Marriage is a life-changing decision that shouldn’t be taken lightly, along with divorce. 

While the decision to separate rests exclusively with the couple, the dissolution of marriage is not only a personal issue, it’s also a legal matter, especially when it comes to property distribution.

Find out some key points on what happens to conjugal properties in the event of a divorce. 

What Are Marital or Conjugal Properties? 

In order to understand conjugal possessions, it’s important to understand which properties are considered common and those which aren’t.

Without a prenuptial agreement—which discusses the financial arrangement for the couple in case of a divorce—the court will view the following items under conjugal ownership: 

• Properties were bought using the couple’s property income.
• The combined income earned by the married couples prior to the divorce.
• All objects purchased from either spouse’s income earned during the marriage.
• Properties acquired while the marriage was active.
• Pension plans, individual retirement accounts (IRAs), 401ks, and other retirement plans. 
• Individual properties that have been merged with marital property and can’t be split out. 

Financial responsibilities also include all debts incurred by either the husband or the wife while they were still married to each other.

A family or divorce lawyer will be able to guide you further on the properties covered by conjugal properties. Look for a seasoned attorney near you, or click here if you’re living in California.  

What Are Non-Marital or Separate Properties?

While it seems that all properties obtained by either party while being married to each other are considered commonly-owned, it doesn’t mean that they can’t have individual properties.

The following possessions are considered non-marital properties and thus, won’t be subject to equitable distribution following a divorce.  

• Properties owned before marriage
• Possessions inherited only by either the ‘husband’ or the ‘wife.’ 
• Items that either spouse received as gifts from other people
• Personal compensations intended for either spouse (i.e., personal injury settlements)   
• Good or properties received as a gift from the spouse
• Properties acquired after legal separation (if the couple was legally separated before filing for divorce)
• Properties that the soon-to-be divorcees have included in a legal agreement. 

How Are Properties Divided After a Divorce?

The basis for asset distribution in case of a divorce typically falls under community property laws. Depending on the state laws, the properties will be divided under the following approaches:

• Community Property Law – Some US states adhere to community property laws, where the first step involves separating the community or conjugal and individual properties. After identifying the common properties, the judge will then divide marital possessions equally. 
• Equitable Distribution Law – In non-community property jurisdictions, judges are tasked to divide all properties acquired during the marriage fairly. In some cases, the spouse who’s financially better off may be ordered to give additional property to the other spouse, apart from the alimony.

 Apart from an inventory of assets, the couple should disclose all their debts before the court, being that it’s considered in the marital properties’ distribution.  

What Does Equitable Distribution Mean?

As discussed, not all conjugal properties are divided equally. Often, it’s made equitably or fairly. This means equal division is not always applicable, as there are factors that need to be considered to arrive at a reasonable distribution.     

Simply put, equitable distribution doesn’t necessarily mean a 50-50 share and will depend on the circumstances of each spouse and the relevant laws. 

How Does the Court Determine ‘Equitable’ Distribution?

Few factors need to be considered by the court to come up with a decision, such as the following:     

• Each spouse’s income and property at the time of the marriage
• The length of the union 
• Both spouses’ age and health condition 
• Loss of benefits (i.e., insurance and inheritance)
• In case children are involved, whether the custodial parent needs a specific marital property, like a home. 
• Other key circumstances, for instance, a wife or husband choosing to stay home and focus on the kids rather than pursuing their own career.   

When Does a Separate Property Become a Marital Property?

Individual ownership may be considered marital property in cases where it’s mixed with a conjugal possession that can’t be separated from each other. 

For instance, if a woman invested in a piece of land before marriage and decided to build a marital house on it, the property becomes common property and will be included in the inventory for asset distribution following a divorce.     

Additionally, a separate property that increases in value following renovations spent by the other spouse remains an individual property. However, the increase in its value may be considered conjugal possession.    

The Bottom Line 

Multiple considerations should be taken in order to divide a former couple’s marital properties. If you want to ensure that you’ll get a reasonable share of specific marital properties, or negotiate for a better allocation, reach out to your divorce attorney before filing a motion to the court.