In St, Louis County (and everywhere in Missouri, in fact) the law that controls the division of property is straightforward, although the application involves some discretion on the part of the judge.
The law says that the marital property is to be divided in such manner as the judge deems “just” (not necessarily equally) between the parties. “Marital property” is then defined as all property acquired by either spouse between the date of the marriage and the date of the dissolution of the marriage (the divorce), regardless of how title is held, EXCEPT:
- Property acquired by just one spouse by gift, devise, or descent;
- Property acquired by just one spouse after a judgment of legal separation;
- Property excluded by a valid agreement of the parties, such as a pre-nuptial or post-nuptial agreement.
Any property that falls in one of the three above exceptions is considered to be non-marital or separate property and must be awarded to the owner of that property.
If you are claiming any property is non-marital or separate, you should be prepared to prove the facts and circumstances of its acquisition, such as a copy of the will or trust.
The law is well-settled that engagement rings and wedding bands are the property of the recipient and that wedding gifts are marital property.
One fertile area for disagreement is the provision in the law that the increase in the value of separate property due to the contribution of marital assets (your earnings during the marriage are considered marital assets), including labor, is marital property to the extent of such contributions.
Another common area for contention is when separate property and marital property have gotten combined (referred to as co-mingling) and in such an instance, the judge will consider if the co-mingling was intended to be a gift to the marital estate so the separate property will be considered to have been transmuted into marital property. A key part of this analysis is if the separate property can be traced.
The issue of marital contributions to the reduction of the principal owed on a real estate mortgage has come up so often that the appellate courts have created a mathematical formula to calculate the marital portion of otherwise separate real estate.
When dividing the marital property, the court is guided by the following factors:
- The custodial arrangements for the children and the desirability of either awarding the marital home or the right to live in the home for a “reasonable period to the spouse with custody of the children (this is of less importance in St. Louis County, as most of the judges have a strong preference for joint custody);
- The economic circumstances of each spouse when the division of property is to occur;
- The value of the non-marital or separate property awarded to each spouse in the divorce; and
- The conduct of the parties during the marriage (in my experience, unless the conduct is egregious, the judges in St. Louis County are only motivated to award an unequal division of marital property when there has been financial impropriety by one party such as gambling or secreting money or spending money on a paramour).
If you have any questions about this article, you should contact your attorney. If you do not have an attorney, feel free to e-mail me at [email protected].