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What Are Marital Assets?

401(k) plans can be included in marital assets.
During a divorce, the court may divide marital assets.
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  • Written By: Dee S.
  • Edited By: Jenn Walker
  • Last Modified Date: 20 July 2014
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When a married couple goes through legal divorce proceedings, one of the first things the court will do is divide up the couple’s marital assets. Marital assets are the items of value that were accumulated by the couple during the time they were married. Real estate, cars, stocks, savings accounts and bonds are among the most common marital assets. Other types of assets may include retirement accounts, furniture, household fixtures, businesses, and cashed-in life insurance policies.

If a couple can agree on the division of marital assets, it can save them a lot of money in legal fees. If the couple cannot agree, then the property typically will be divided up by the court. In that case, the attorney for each side will argue for what their clients believe is rightfully theirs. Regardless, hiring an attorney who specializes in family law or divorces is recommended for most divorcing spouses.

There are many laws regarding the division of marital assets. Some jurisdictions divide property in a 50/50 manner. Other jurisdictions do not divide them equally, but divide them “fairly and equitably.” In some places, the court will determine whether either spouse was at fault for the divorce and divide property accordingly. For example, if a spouse was involved in an extramarital affair, the court may divide property in favor of the non-cheating spouse in an 80/20 manner.

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One of the trickiest assets to divide up is real estate, specifically the family home. Many jurisdictions have laws that state that even if the house was purchased by one spouse prior to marriage, the home may still be considered a marital asset. In some jurisdictions, the spouse is entitled to split the value of the home. In other jurisdictions, the spouse is entitled to split only the increased value of the house during the time of the marriage. For example, if the home was purchased before the marriage by one spouse for $100,000 US Dollars (USD) and during the marriage it raised in value to $150,000 USD, the other spouse is entitled to split the increase in value, or split $50,000 USD.

A good divorce lawyer typically will direct her client on how the laws in their respective jurisdiction will affect the division of home. Some options that may be discussed are selling the house or having one spouse buy the other spouse’s share of the home. In some cases, one spouse may grant the house to the other spouse exclusively.

Retirement plans are also valuable assets that may be included as a dividable marital asset by some jurisdictions. Retirement plans can include 401(k) plans, company profit sharing, pension plans, and Roth IRAs. Some jurisdictions also include benefits from employment, such as vacation days, bonuses, and stock options. It is recommended that each spouse meet with an attorney and an accountant before agreeing to divide up any retirement or employment benefits. An expert will be able to direct her client according to area laws and inform her client exactly what she is giving up.

If one or both spouses own a business, it also may be considered a marital asset. The court will follow the laws of the jurisdiction, but may also consider additional factors, such as how much each party worked toward the success of the business, and who began the business. The business will need to be appraised before it is divided or sold.

Cars, household items, and collectables must all be divided according to the laws of the jurisdiction or pursuant to court order. In most cases, the value of these items can be found through comparison shopping. Once a value is determined, the items can be sold for cash or purchased by the other party. In some cases, it is best for the spouses to make a list of the marital items they want. Occasionally, many of the items one spouse wants are irrelevant to the other spouse, making the division of marital assets easier.

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