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Neal Jacobs

8118 Corporate Way, Suite 110, Mason Ohio 45040

NJ

Property Division

Property Division (Marital and Separate):

divorce Lawyer property divisionProperty acquired during a marriage is generally referred to as “marital property” and in most circumstances is equally divided between the parties. Nonetheless, the court must first determine what constitutes marital property, and what constitutes separate property. Separate property is composed of assets brought into the marriage by one of the parties; or a gift of real or personal property made after the date of the marriage which is proven, by clear and convincing evidence, to have been given to only one spouse.

After classifying the assets, the court disburses a spouse's separate property to that spouse, and divides the marital property equally--unless the court finds an equal division would be inequitable. The party seeking to have a particular asset classified as separate property has the burden of proof, by a preponderance of the evidence, to show that the asset is separate property

Transforming Separate Property:

Even if property is separate, appreciation of that asset may be classified as marital if the increased value is due to the non-owner’s active management of the asset—whether it be real estate, or an ongoing business. To evaluate such a transformation or “transmutation”, the court determines the value of the separate property as of the date of the marriage and then establishes the separate property's value as of the marriage's termination date. The difference in value is the basis for determining the separate property's appreciation during the marriage.

Once the court has determined the appreciation of the separate property it must determine what caused the appreciation, specifically, whether it was passive, or due to contributions from either spouse. If the appreciation is passive, then the appreciation remains separate. If the appreciation is the result of the efforts of the parties, notwithstanding the fact that the property is separate, the appreciation is marital property.

 

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