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Family Law

Divorce

How does a court determine how to apportion marital property?

This varies from state to state. Law in many states provide a great deal of discretion to trial courts to apportion marital property, as it deems just. Many states provide a list of factors that a court considers in making its decision. For example, Missouri law (Mo. Rev. Stat. § 452.330.1 [2008]) provides that courts should consider the following five factors in apportioning marital property:

  • (1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

  • (2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

  • (3) The value of the nonmarital property set apart to each spouse;

  • (4) The conduct of the parties during the marriage; and

  • (5) Custodial arrangements for minor children.

In some states, courts start with a presumption that the marital property should be distributed relatively equally. But, then the parties can rebut that presumption by presenting evidence of marital fault or substantial contributions by one spouse. For example, Indiana law (Ind. Code Ann. § 31-15-7-5 [2008]) provides as follows:

The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:

  • (1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

  • (2) The extent to which the property was acquired by each spouse:
    (A) before the marriage; or
    (B) through inheritance or gift.

    • (3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.

    • (4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

    • (5) The earnings or earning ability of the parties as related to:
      (A) a final division of property; and
      (B) a final determination of the property rights of the parties.



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