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Marital vs. Non-marital Property

When dividing property in a divorce, it is important to understand the difference between marital and non-marital property.

What is Marital Property?

Typically, property acquired during the marriage is marital property, including any wages earned during the course of the marriage. It may include the marital home if it is acquired during the marriage, as well as any retirement or investment accounts developed during the marriage—regardless of which spouse earns the money in the accounts.

What is Non-marital Property?

There are several categories of non-marital property. First, property acquired prior to the marriage is likely non-marital property. For example, if one of the parties owned a home that the parties use as a residence, some of the value of that property may be considered non-marital.

Retirement benefits may also be non-marital. If a party was employed prior to the marriage and earned retirement benefits prior to the marriage some or all of those benefits may be non-marital.

A family heirloom, such as grandmother’s engagement ring, owned by one party prior to the marriage, is non-marital property.

A vacation home may be non-marital property depending on how and when the property was acquired. Property may be passed down through a family and may be viewed as an inheritance.


An inheritance received by one spouse is a non-marital asset. This is true even if the inheritance is received during the marriage. This is one of the few assets acquired during a marriage that is considered non-marital property. This is true regardless of the form of the inheritance, real property, cash, stocks, or other property. However, whether an inheritance remains non-marital property depends on certain facts.

Co-mingling Assets

It is possible that assets that are originally considered non-marital assets lose that categorization when they are deposited with marital assets. This is known as co-mingling assets. If you want to preserve non-marital assets as non-marital, those assets must be kept completely separate. For example, keep any financial assets that are non-marital in a completely separate account. Do not deposit marital funds in that account.

Determining Property Division

Determining property division can be complicated in any divorce. Determining marital versus non-marital property requires the application of a complex formula. This requires the employment of a qualified, experienced family law attorney in Cincinnati. The law office of Zachary D. Smith, LLC has the experience and expertise to assist you in your divorce. For further information or to schedule a consultation please contact ZDS Law at (513) 275-1164 or visit www.ZDSLaw.com.


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