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Marital property: What is it, and how is it divided in a divorce?

For many people, understanding of the term "marital property" can likely be expedited through its comparison of what the courts in Arkansas and other states deem "separate property." The distinction can be very important -- often a core consideration -- in a divorce proceeding.

The latter term denotes what it facially indicates, that is, an asset that is not co-owned in any manner by a divorcing couple. Rather, that asset -- whether a car, painting, piece of jewelry, bank account, real estate holding or other property -- is owned solely by one party alone.

That is, it is indivisible. In children's playground terms, that means this: It's mine.

A court determines property division outcomes in Arkansas divorces when they are not clear. In deciding whether property is "separate," a judge will be guided by several factors, posing these questions:

  • Was it purchased by one party before marriage?
  • Was it commingled following marriage (mixed with marital property)?
  • Has it always been clearly identified as separate property (for example, through a prenuptial agreement)?

Marital property, conversely, is property deemed by a court to be owned by a couple together. That generally means that assets acquired during a marriage will be considered as marital assets, unless proven otherwise.

As noted, the distinction between marital and separate property is critical when it comes to property division in a divorce proceeding.

In Arkansas, a judge will divide an asset deemed as marital property equitably.

In a word, that means fairly. It does not necessarily mean equally, since circumstances in a given case might allow for distribution that is not precisely a 50/50 split.

A judge commands broad -- though not unlimited -- discretion in his or her consideration of factors relevant to property distribution. A proven family law attorney with experience in matters relating to division of assets can play a vital role in helping to ensure that the interests of a divorcing spouse are fully protected during the property division process.

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