Marital vs. Non-Marital Property in Kentucky
My spouse is offering me half the value of our assets if we do not use an attorney. Is that
a fair deal?
Maybe. Dividing property during divorce is not always as simple as splitting everything 50/50. In Kentucky, it is important to consider the difference between marital and non-marital property. The distinction can significantly affect who walks away with what in a divorce or legal separation and what is a “fair deal.”
Property division in Kentucky is about classification first, valuation second, and equity last. How does a court classify property? The court first makes a distinction between marital and nonmarital property. (Keep in mind, property here means “assets;” this includes bank accounts, retirement, stock options, etc. not just real estate.)
KRS 403.190(1) clearly defines marital property as all property acquired by either spouse after the marriage and before the divorce except property that falls under certain exclusions.
Marital property is generally subject to division in a divorce or legal separation, it includes assets and income earned during the marriage. This can encompass real estate purchased while married, even if the title is in only one spouse’s name, as well as retirement accounts or pensions that accrued during the marriage. Cars, furniture, and bank accounts acquired while the couple is married are other examples of items typically considered marital property.
Non-marital property, on the other hand, is generally not divided during a divorce or legal separation. This includes property one spouse acquired before the marriage, as well as inheritances or gifts received by one spouse, even if they were received during the marriage. Property that is specifically excluded by a valid prenuptial or postnuptial agreement also falls into this category. Additionally, some types of personal injury settlements might be considered non-marital property.
Mixed or “commingled” property can create more complex issues. For instance, if one spouse owned a home before the marriage but both spouses contributed to the mortgage during the marriage, the property may be considered partially marital. In these cases, courts often look closely at how the property was treated and whether it became so intertwined with marital assets that it lost its separate character.
To preserve a claim of non-marital property, you must be able to trace it clearly and prove its source. You should consider consulting with an attorney to determine the strength of any potential nonmarital claims.