Do all assets become half owned by your spouse after marriage? 23 Answers as of November 09, 2011Do some things stay separate until or unless names are added to accounts like bank accounts, stocks, trusts, home deeds? We are trying to determine how much paperwork needs to be done before and after marriage.
Reeves Law Firm, P.C. | Roy L. Reeves
Texas is a community property state. Simply put, there is an assumption that all property gained during the marriage is community property and therefore subject to division in a divorce but this assumption is not final, it is what the law refers to as a "rebuttable presumption". To assist in explaining this concept, lets look at the law: Texas Family Code 3.001 provides that a spouse's separate property consists of: (1) property owned or claimed before the marriage; (2) property acquired during the marriage by gift, devise, or descent (inheritance); and (3) the recovery for personal injuries by the spouse during the marriage that are not recovery for loss of earning capacity during the marriage. Texas Family Code 3.002 states that all property possessed during marriage is presumed community property UNLESS it is shown to be separate property. Applying these two rules we start with the assumption that on date of divorce, everything is community and therefore everything is subject to division. (There is an assumption that the community will be shared equally - this is referred to in the code as a "just and right division", but this too is subject to the court's discretion, proof of values, and other factors that are too numerous to discuss here.) The spouse who claims property is separate, and therefore not subject to division, has the burden of establishing it is separate by "clear and convincing evidence". I explain "clear and convincing" like this: there are three burdens of proof, "Preponderance of the Evidence" is a 51% rule - the evidence is put on a scale and whichever side has more weight wins; the highest burden is "Beyond a Reasonable Doubt" the amount of evidence you would need to put someone in prison (take away their freedoms), it is not "beyond all doubt" just beyond "reasonable" doubt which is a very difficult term to describe in and of itself; "Preponderance of the Evidence" is the middle ground, there is no quantitative description, in other words is not merely 75% or 80%, it is that amount of evidence that firmly establishes within the mind of the trier of fact that the asserted fact is "most likely true". Assuming I have not muddied up the waters with these definitions, lets return to the community vs. separate property issue: Your property and that property owned by your spouse that is separate and can be shown separate remain separate unless it is so comingled with community property that it can not be distinguished. For example, you have $50K cash, your spouse has $20K cash both prior to marriage, you put the entire $70K into a joint bank account, pay checks go in, bills go our, the account drops below $70K many times. What is the character of the cash in the account latter? It is community now, since we cannot ascertain when and where the separate monies were spent. However, the same is not true for everything. If you own a house prior to marriage, it is separate property. Character attaches at inception of title - when you got the property, not what is on the title later. In other words, you own the house prior to marriage, your deed says to you. You later refinance the house, the refinance is a contract with the bank that does not change character of the property, only the liability of the parties. If you add your spouse to th deed, it makes it more difficult to prove (since he/she can now claim you gifted a portion of the house to them as their separate property) but you can still show it is your separate property because you owned it (took inception of title) prior to marriage. While every marriage starts out good, and I (yes, strange for a Divorce Lawyer to say) hope every marriage is successful, keeping records of separate property and not muddling the titles is best for all concerned. If you want your new spouse to have the house if you die first, put it in a will, not on the deed. Same for stocks (give them Right of Survivorship, give a Durable Power of Attorney, or bequest it in a will) and trusts (give it to him/her in a Will). You can make divorce planning (a bad term that is technically not appropriate in the law) or you can make estate planning (perfectly legal and accepted) which accomplishes the same thing. You choose.
Answer Applies to: Texas
The Law Offices of Seth D. Schraier | Seth D. Schraier
Generally speaking, all property acquired by either spouse before the marriage is considered non-marital property. All property acquired after the marriage is considered property of the marriage or marital property. Property Is Presumed To Be Marital Property Except For: - Property acquired by gift, legacy or descent. - Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent. - Property acquired by a spouse after a Judgment of Legal Separation. - Property excluded by valid agreement of the parties. - Any judgment or property obtained by judgment awarded to a spouse from the other spouse. - Property acquired before the marriage. In terms of distribution of property that is considered marital property in New York, equitable distribution laws apply. Directly from Domestic Relations Law Sec. B(5)(d): In determining an equitable disposition of property under paragraph c, the court shall consider: (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties; (3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; (5) the loss of health insurance benefits upon dissolution of the marriage; (6) any award of maintenance under subdivision six of this part; (7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (8) the liquid or non-liquid character of all marital property; (9) the probable future financial circumstances of each party; (10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; (11) the tax consequences to each party; (12) the wasteful dissipation of assets by either spouse; (13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (14) any other factor which the court shall expressly find to be just and proper. Property acquired during the marriage is presumed to be marital property. Raviv v. Raviv, 153 AD2d 932 (2nd Dept. 1989). This presumption may be overcome by the party seeking to prove it is separate, but absent such proof the default is to assume it is marital. Likewise, when one spouse puts property in the name of both spouses, the asset becomes marital.
Answer Applies to: New York
Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
Usually only assets that are acquired during the marriage are considered marital assets and thus subject to equitable distribution. It is possible for a non-marital asset to become a marital asset if marital assets are used for the benefit of a non-marital asset. (For example, using a marital asset to pay the mortgage payments or make repairs on a non-marital home.)
Answer Applies to: Florida
Law Office of James Bordonaro | James Albert Bordonaro
Kansas has a "uniform" pre-nuptial law. That means it is very similar to the other states that have adopted the same statute. That would be the best idea to refer to the statute to determine how to titled your assets. Kansas is not a community property state when it comes to divorce but it does apply an equity standard rather than splitting things in half.
Answer Applies to: Kansas
Law Offices of Arlene D. Kock | Arlene D. Kock
This question requires careful analysis by a skilled family law attorney. Specific information is needed not found in this question about your assets and liabilities in order to ascertain what we separate and community property.
Answer Applies to: California
Bruning & Associates, PC | Kevin Bruning
Assets purchased before the marriage her nonmarital assets. Assets purchased after the marriage are marital assets. Some assets received after the marriage, like inheritance or other gifts, our nonmarital assets. However, nonmarital assets can be converted to marital assets if they are combing old with marital assets. For example, if you received an inheritance of $10,000 and used the $10,000 to make improvements to a home purchased after the marriage, it is likely that the court would consider the inheritance to be marital property.
Answer Applies to: Illinois
Alfred Law Firm | Janice Alfred
Not all assets are deemed marital property. Typically, assets acquired prior to the marriage and inheritance or gifts from third parties are not considered marital property. If the two of you agree on how to divide your property you can draft a settlement agreement that deals with all the issues and the method in which the transfers will occur. It is essential to address all important issues in the settlement agreement because the court will incorporate it into its order when the divorce becomes final.
Answer Applies to: Georgia
Law Offices of Steven A. Hemmat | Steven A. Hemmat
The general rule is all property owed or earned prior to marriage is considered the separate property of the respective spouse. All income earned or property purchased during the marriage is considered community property, of which each party has an undivided one-half interest. To answer your question, not all assets do not become half-owned by your spouse upon marriage. However, in case of a divorce or legal separation, a court has the authority to make a fair and equitable distribution of assets - including separate and community assets. Characterizing assets as "separate" will not necessarily protect them in case of a divorce or legal separation.
Answer Applies to: Washington
John E. Kirchner, Attorney at Law | John Kirchner
No. Property owned before marriage remains separate property of the owner unless and until it is transformed into jointly owned property. Except in community property states, "ownership" remains in the name of the person holding title and the other spouse only has a claim to a share in a divorce case.
Answer Applies to: Colorado
Joanna Mitchell & Associates, P.A. | Joanna Mitchell
Assets that were acquired AND paid for prior to the marriage are non-marital unless you add your spouses name to the title or deed. Debts owed prior to the marriage are non-marital. Any asset that is acquire or debt that is incurred during the marriage is marital regardless of whose name it is in. The best way to protect yourself is to enter into a prenuptial agreement wherein you clearly define who has what, how joint assets are defined, etc. in the event of a subsequent divorce.
Answer Applies to: Florida
Donaldson Stewart, PC | Monica H. Donaldson Stewart
Generally speaking, assets owned prior to marriage remain separate property (unless the assets are later "commingled" by adding the spouse's name to the title). Assets acquired during the marriage are presumed to be community property. If you and your future spouse wish to have greater control over how assets are designated, you may want to consider entering into a prenuptial agreement.
Answer Applies to: Arizona
Glenn E. Tanner | Glenn E. Tanner
Title matters very little in determining whether something is separate or community. You need to see an attorney to figure this out. The paperwork you mention is not the issue, determining whether something is separate or community is what takes time.
Answer Applies to: Washington
David A. Browde, P.C. | David Browde
Yes, generally the rule is that property owned by one spouse prior to the marriage remains separate property but there are ways that separation can be destroyed. You should consult an attorney to discuss your situation in detail.
Answer Applies to: New York
Michael Apicella | Apicella Law and Mediation
There is a presumption in California that all property acquired during marriage is community property, unless, for example, acquired by gift, will, or with other separate property. All community property should be divided equally upon any divorce. Separate property stays separate after marriage, as long as there has been no conduct that would create a community interest in the property (e.g., paying off the principal of any loan with community funds, or depositing community funds, like your paycheck, in a separate bank account). There are many ways of intentionally or inadvertently transmuting property from separate to community during marriage depending on the conduct of the parties. To gain a full understanding, it would be best to consult with a local family law lawyer.
Answer Applies to: California
Law Office of Michael W. Bugni | Jay W. Neff
Community property is property that you acquire during the marriage by working for it. Things that you had before the marriage are separate property. Things that you get by gift during the marriage are generally separate property. In general, separate property stays as your separate property and community property stays as community property unless you do something intending to change its character. Further, the rents, issues, and profits of separate property are separate property, and the rents, issues, and profits of community property are community property. There is a very old example to illustrate this point: Suppose you own a cow before you get married. After you get married, the cow has a calf. Is the calf separate property or community property? In general, it is separate property. Since the cow was separate property and since the calf is the issue of the cow, then, the calf is separate property.
Answer Applies to: Washington
Reza Athari & Associates, PLLC | Seth L. Reszko
In general terms, Nevada is a community property state, rather than an equitable distribution state. While most of the property obtained after your marriage would be considered community property rather than separate property, your actions after the marriage can change the characterization from separate to community property, i.e. changing the account to a jonit account. If you are not married, sometimes a pre-marital agreement might be considered to clearly identify what property would remain separate and community property if there was a divorce. I would recommend seeking the advice of counsel.
Answer Applies to: Nevada