What Is Marital Property And What Is Separate Property?

Missouri Law requires that in a divorce the trial court set aside to each party their separate property and then divide the marital property between the spouses “equitably.” Usually this means 50:50.

Separate property is limited to:

1. Property acquired before the marriage
2. Property which is inherited
3. Property received as a gift.

 

Property acquired before the marriage, an inheritance or a gift which remains titled in the name of the original owner remains separate property.

But if the title of the separate property is changed to include the names of both spouses, it will be presumed to have been intended to become marital property in the eyes of the court.

To change the nature of property from separate to marital, a ‘clear intention’ to make a gift to the marriage/ spouse must be demonstrated. For example, if A woman has stock in a mutual fund in her sole name before she marries and later asks her broker to  put the mutual fund in the her name and her husband’s name, the court would see this as a clear intent on her part to change her separate property mutual fund into marital property.   This means that if they divorce, the court will equitably split this mutual fund between the wife and her husband.

To convince a court that “separate property” has changed into “marital property” requires more than just a co-mingling of funds in an otherwise separate property fund. For example, if a wife makes contributions to Husband’s separate property IRA, this will not act to change the IRA from his separate property into marital property.  The IRA is still the Husband’s separate property.   But the court would likely award a payment from the IRA in an amount proportional to her contribution, to be fair to the Wife.