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Borengasser Law Office, lawyers / attorneys in Lake St. Louis, St. Charles,
​O'Fallon, Wentzville, Saint Peters, Missouri

Marital v. Separate Prop

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​Law Office

The Choice of a lawyer is an important decision and should not be based solely upon advertisements.  This website is intended to provide information about the legal services offered by the lawyers at Borengasser & Marler.  Every case must be carefully evaluated based on its particular facts.  If you are interested in speaking with one of our attorneys, please contact us and arrange for an initial consultation.  At the initial consultation, you will meet with one of our attorneys and discuss the specifics of your situation.  We will discuss your options and whether Borengasser & Marler is the right law firm to serve your legal needs.

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Classifying Property as Marital or Separate in Divorce

The divorce court has no authority to divide a separate asset, nor to make a decision about who receives a separate asset.  If an asset is separate, then it belongs to one spouse, as a matter of law.

On the other hand, most assets acquired during a marriage are "marital" assets. The divorce court has wide-ranging discretion to divide those assets according to legal rules that, in essence, invoke general fairness.

Assets owned by a married couple are marital unless: (a) acquired before the marriage and not inextricably comingled with marital assets or (b) acquired by gift or inheritance.

These categories seem simple enough, but proving when or how an asset was acquired can be difficult.  An easy to imagine example is that an 80-inch television might be purchased as an early birthday gift (it would be separate property) or just because the old television stopped working (the new television would be marital property). This 80-inch television was purchased using a debit card from a joint checking account, which doesn't really help answer the question of whether it was a gift or household purchase. The same can often be said of the boat, the BMW, or the print hanging in the living room.

The question of whether property is separate or marital gets even more complicated when separate funds are used as a down payment for a marital asset. The most common example is when a party uses separate funds held prior to the marriage as a down payment on a home. The parties then use their wages (which are marital property) to make mortgage payments and increase their equity in the home.  Once you throw in interest paid on the mortgage loan, and appreciation in value of the residence, determining shares of separate and marital equity requires a keen understanding of the applicable law.

If you have read this far, it may be time to call a lawyer. I would be happy to talk with you.

Borengasser Law Office
1000 Edgewater Point, Suite 406
Lake St. Louis, Missouri  63367

Phone: (636) 625-0505
Toll Free: (888) 516-7412
Fax: (636) 265-1016

Office Hours:
​Mon - Friday
9:00 a.m. - 5:00 p.m.

Weekend and Evening Appointments ​Available Upon Request

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