How will property be split in a divorce case?

When parties divorce, their marital property must be divided “equitably.”  (Note that the law does not require an equal division, although the property often is divided equally.)  Often, the parties, with the help of their attorneys, can resolve the division of property issues without help from the Judge.  However, that is not always the case.

The presumption in Missouri is that any property acquired during the marriage is “marital” and must be divided.  The exceptions to this are:  property that is acquired by inheritance, property that was owned prior to the marriage or was acquired in exchange for property that was owned prior to the marriage, and property acquired by gift.  It is the burden of the person claiming that an item of property is “separate property” to prove that it falls within one of the categories of separate property.

Many arguments over the division of property stem from whether the item in question should be considered marital or separate property.  For example, in the case of gifts, the typical response is that it was a gift to both parties, which makes it marital.  If inherited property is at issue, there could be questions about whether it was ever held in joint names, which would convert separate property to marital property.  Tracing an item of property and when and how it came into the marriage can be difficult and costly.

Another source of argument over the division of property is determining the value of particular assets.  If it is a money account, the value is, obviously, easy to determine.  However, a house can be more complicated and often real estate appraisals are utilized.  More complicated still is the valuation of businesses.  This is often a costly endeavor requiring the use of experts.

The requirement that marital property be divided “equitably” is another source of litigation.  Missouri is, for the most part, a “no fault” state.  However, the Court can, to an extent, consider misconduct when dividing the marital property.  The person requesting an unequal division of property must prove to the Court that the misconduct of the other person placed an undue burden on the marriage.  This is most typically applied when someone has spent marital money in the pursuit of an extramarital affair.

Although the division of property seems simple (and is often settled), it can be complicated, hotly contested, and require the employment of expert witnesses.