In general, all property is presumed to be a part of the marital estate. However, there are certain types of property, known as "non-marital property", that are not subject to division in a divorce proceeding. In general, non-marital property is any property that:
- Is acquired as a gift, or as inheritance made by a third party to one but not to the other spouse;
- Is acquired before the marriage;
- Is acquired in exchange for or is the increase in value of property which is otherwise non-marital; or
- Is excluded by a valid prenuptial or post-nuptial agreement.
In some cases, assets may have both marital and non-marital components. For example, it is not uncommon for retirement accounts or real estate to have both a marital accounts to have both marital and non-marital components. In the case of real estate, we apply a formula to calculate the non-marital interest. This is often referred to as the “Schmitz” formula. For example, assume that when husband and wife married, wife owned a home worth $100,000 and owed $80,000 on the mortgage. Wife's non-marital claim in the home is 20%. If, at the time of the divorce, the home value has increased to $200,000, then wife's non-marital claim in the home has increased to $40,000.
The attorneys at Rogness & Field are experienced in dealing with non-marital claims and can help you determine if you have a claim and the value of your claim.