Are Premarital Assets Exempt from Division in Divorce?

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Courts may consider several factors when deciding to exclude premarital property from assets that are divided in a divorce. Those factors include (1) the length of the marriage, (2) the needs of the parties, (3) the needs of the children, (4) the earning power of the parties, (5) the source of the property, (6) where the contributions toward property acquisitions came from, and (7) the cause of the divorce, including fault in the breakdown of the marriage. The court may consider other factors it finds to be relevant in a given situation.  Fault generally plays less a role than many clients wish and it may not be used to punish the other party to produce an inequitable result.

As a general rule, a party’s premarital assets are not considered divisible in a divorce unless the other spouse contributed to the acquisition, improvement or accumulation of the property, or the marital property is insufficient for the suitable support and maintenance of the other spouse. This could result in a house being returned to the spouse that brought it into the marriage, but the other spouse sharing in the increase in equity during the marriage.

Separate property may include assets a party owned before the marriage, gifts or inheritances, assets received after separation or filing, or assets or appreciation traceable to those items.  Inheritances are generally considered separate property if held in a separate bank account and not placed under joint control.

Property division, child support and spousal support are sometimes related. If a party needs support, a court might award a party more than half the assets; or include what might otherwise be considered separate property.

Look for an experienced divorce attorney who can help you navigate the many choices necessary to assist you in being adequately protected.  Pater Law is ready to help you achieve a fair result.

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