The law in Kentucky presumes that all the property that two people who are married own is their "marital property", that is, both own the whole. Legal title is not determinative.
The law will allow you or your spouse to attempt to overcome this presumption. The method we use to do this is commonly called "tracing."
In order to succeed at getting property reclassified as your non-marital property, you must be prepared to show the court:
- That you owned the property before you got married to your present spouse;
- That the property was a gift to you individually from someone other than your spouse during the marriage;
- That you inherited the property before or during the marriage;
- That the property was bought with money from the sale or transfer of property described in (1), (2) or (3) above; or
- That the property was excluded by a valid legal argument.
Examples of non-marital property include cars, boats, motorcycles, houses, real estate, cabins, farms, bank accounts, stocks, certificates of deposit and businesses owned by you or in which you had an interest before your marriage. The court must assign non-marital property before proceeding with the balance of the case.
Old titles to your car, credit card receipts, cancelled checks, deeds, wills, and similar documents are what is needed if your attorney is going to trace property for you. Not having these documents does not mean you will not be able to get your property back, it may just make it more difficult. Tracing can get really tricky when you had property of some kind before you got married and then sold the property and mixed the money you got from that sale with money you earned during the marriage to buy something else.
With proper documentation, your lawyer may be able to get the value of your non-marital contribution to the purchase of the property back for you. This scenario frequently happens when two people sell their respective homes they lived in before the marriage and buy a new home. Our courts have been faced with this problem so many times that the Supreme Court, in the case of Brandenburg v. Brandenburg, developed a formula for determining the marital and non-marital interest in the home(s). This formula is now used almost exclusively across the state.
Importance of Preparing An Inventory of Non-Marital Property
Completion of a Non-Marital Inventory is extremely important. This is your opportunity to stake a claim on all the things you owned before your marriage and that were given to you as gifts as well as property inherited by you and bought with money you obtained through any of the above.
Remember, however, that many of the items you claim to be non-marital will require proof that you obtained them before the marriage, as a gift exclusively to you, as an inheritance or purchased with funds from one of those sources.
For example, if you inherited your father's farm three years ago (before or after your marriage), you may need your father's will to prove it was an inheritance. On the other hand, if your mother gave you a family heirloom such as her mother's china, you will need a letter from your mother or someone else knowledgeable about the circumstances as proof it was a gift to you and you alone, perhaps with the understanding that you would pass it on to your daughter when she married.
Finally, as you begin to list the non-marital property you are claiming, you must attempt to give each item a value. The value should take into consideration each item's age and condition. Unfortunately, we cannot translate your sentimental attachment to Aunt Betty's rocking chair into money unless it is a true antique. Its true worth is probably what you could sell it for in a yard sale or auction.
