When dividing the assets during a divorce it is important to determine if an asset or liability is (1) marital or (2) non-marital. This is incredibly important because it determines what property is subject to division and what property is the “separate property” of each party.
Generally marital property—property acquired during the course of the parties’ marriage—is subject to equitable distribution. In some instances, property acquired during the marriage—i.e. an inheritance—is itself not subject to equitable distribution. However, any increase or decrease in value of that asset during the course of the marriage will be subject to equitable distribution.
On the other hand, non-marital property is property protected from equitable distribution and will not be subject to division. Property can be non-marital for a variety of reasons. Property acquired before the marriage, protected by a prenuptial or postnuptial agreement, acquired after separation or in certain exceptions are considered non-marital. However, this protection is not absolute. A non-marital asset commingled with marital assets can lose its protected status and become part of the property eligible for equitable distribution.
Not all assets owned by the parties at the end of a marriage are subject to division during a divorce and not all assets once considered non-marital remain so.
