Property Division

Steve Scott

Attorney at Law

Serving Landlords, Individuals
and Small Businesses

Vanessa Reynolds

Legal Assistant

Property Division

Division of property between divorcing spouses is a potential issue in all dissolution cases, even if no children are involved and neither spouse is seeking maintenance. To understand how property is divided, it is necessary to know the difference between "separate" (also called "non-marital") property and "marital" property. A somewhat simplified explanation of these types of property follows:

Separate property is:

	Property owned by one spouse before the marriage, which retains its character as separate property so long as the spouse who owned it before the marriage did not make a gift of an interest in the property to the other spouse after the marriage
	Property acquired during the marriage in exchange for separate property owned before the marriage
	Property acquired individually during the marriage by either spouse as a gift or inheritance

Marital property is:

	All property acquired during the marriage by either spouse, even if titled in the name of only one spouse (subject to the exceptions noted above for acquiring separate property during the marriage)
	The increase in value of separate property to the extent marital assets contributed to the increase in value
	Property that otherwise would be separate property if it has been so "commingled" with marital property that it cannot be separately identified (this most commonly occurs when separate property is mixed with marital property in bank and investment accounts)

The distinction between separate property and marital property is important because each spouse is entitled to retain his or her separate property in any event, while marital property is subject to being divided between the spouses by the court if the spouses cannot agree.

The burden of establishing that a particular item of property is separate property is on the spouse who claims the item as separate property.

If the spouses cannot agree on property issues, the court will have to decide after hearing evidence at a trial. While the starting assumption is that division of marital property should be approximately equal, the court has the power to deviate from this general guideline after considering relevant factors specified by the statutes, which include:

	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
	The contribution of each spouse to the acquisition of marital property, including the contribution of a spouse as homemaker
	The value of separate (non-marital) property set apart to each spouse
	The conduct of the parties during the marriage (that is, misconduct can be punished by awarding less property to the wrongdoer)
	Custodial arrangements for minor children

In addition to dividing marital property, Missouri courts have statutory authority to allocate responsibility for payment of debts between the divorcing spouses. This can be crucial in ensuring an appropriate overall division of property.

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