Dividing Property During Divorce

January 22, 2016  |  divorce, property distribution

When parties seek a divorce, it is necessary to determine which person gets what property.  In Kentucky, there are two kinds of property relevant to divorce cases: (1) separate property, and (2) martial property.  When considering the division of property, you need to determine whether the property at issue is separate or marital.  If the property is separate, then the owning-spouse gets to keep that property.  If the property is marital, then it will be included in the category of property that should be considered for equitable division between the parties. 

Marital property that will be equitably divided between the spouses is property that was acquired by either spouse after the marriage.  It does not have to be a joint purchase.  However, the following are exceptions to that rule:

  •          Property acquired by gift, bequest, devise, or descent during the marriage and the income obtained       therefrom unless there are significant activities of either spouse which contributed to the increase in value of said property and the income earned from it;
  •          Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
  •          Property acquired by a spouse after a decree of legal separation;
  •          Property excluded by valid agreement of the parties; and
  •          The increase in value of property acquired before the marriage to the extent that such increase did not result from the efforts of the parties during marriage.

All property acquired by either spouse after the marriage and before a decree of dissolution (that’s the legal term for the finalization of a divorce) is presumed to be marital property, regardless of whether title to the property is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property.  That presumption can be overcome though by showing that one of the exceptions (in the bullet point list above) applies. 

In determining how to divide martial property, the court will consider all relevant factors, including:

  •          The contribution of each spouse to the acquisition of the marital property (which includes a homemaker’s contribution as well);
  •          The value of the property set aside to each spouse;
  •          The duration of the marriage; and
  •          The economic circumstances of each spouse at the time the distribution will take effect, including the desirability of awarding the family home or the right to live in that home for a reasonable period of time to the party who is awarded custody of any children.

Please note that although the goal of the court is to divide marital property equitably, every party may not agree that the court’s distribution is “equitable.”  Equitable does not necessarily mean 50/50.  If the parties can agree how the property will be divided, the judge will likely follow whatever arrangement the parties reach (barring unfair bargaining or other unjust circumstances). 

If you have any further questions or you need a specific assessment related to your individual situation, contact us for more information.