Distribution of Marital Property
When a marriage is dissolved, the only matter that must be decided, other than the dissolution of the marriage, is the distribution of property. Marriage involves the entanglement of many different property interests. Much of the dissolution proceeding is devoted to deciding how to disentangle those competing property interests.
The power to distribute property in a dissolution proceeding is limited to the distribution of the property of the marriage. Marital property is property acquired by the parties during the marriage. Nonmarital property (not subject to disposition by the court in a dissolution proceeding) includes property owned by either party prior to the marriage or acquired by gift or inheritance.
The states follow two main approaches to the distribution of marital property. The community-property system is followed in ten states. The remainder of the states follow the common-law system of equitable distribution.
Question
If state statutes distinguish between marital and nonmarital property, what is the purpose of a prenuptial agreement?
In most states, the parties are allowed to define “nonmarital property” by a written contract (the prenuptial agreement). The definition of the parties need not be the same as the definition in the statute as long as it is not unconscionable. A prenuptial agreement is often used when the statutory definition of nonmarital property does not meet the needs of the parties.
Common-law Distribution
The common-law distribution of marriage historically assumed that the woman lost all legal identity in the marriage and that all marital property belonged to the husband. Beginning in the 1960s, courts began to turn to an equitable distribution model. This model was a part of the no-fault divorce movement — its primary feature is that marital property accumulates through the efforts of both parties.
Marital property is divided in a way that considers the fairness of the distribution — in terms of the length of the marriage, the earnings of the parties, the physical health and capabilities of the parties, and the respective contributions of each spouse to developing the marital estate.
Community-property Distribution
From the Spanish and French civil law traditions, the community-property distribution model assumes that both parties act for the benefit of the marriage. The contribution of each party is counted whether it is financial or not, and each party is entitled to share in the gains of the marriage.
The presumption of the community-property distribution model is that all marital property is owned in co-ownership without regard to financial contribution. Each party is entitled to half of the marital estate. Because this rule can also result in inequities, most courts began to move away from a strict application of community-property distribution to a more equitable distribution model, based on principles of unfairness.
Alert
Most people understand the concept of community property in the context of a division of marital property after a divorce. In fact, the concept of community property significantly affects other areas of the law, including the law of ownership and disposition of real property and the law of wills, trusts, and probate. A working knowledge of the legal principles behind family law is useful for a paralegal practicing in either of these legal specialties.
