If you’re going through a divorce in Missouri, you should familiarize yourself with Missouri's marital property laws in order to protect your rights. This article provides a basic overview of how property gets divided in a Missouri divorce.
When couples go through a divorce, they need to address a variety of issues, including how to divvy up their property (assets). Assets can include “real property,” such as homes and land, and “personal property,” such as bank accounts, cash, cars, furniture, collectibles, jewelry, clothing, bank accounts, investments, and retirement benefits.
Missouri is a "dual-property" state, which means that, for divorce purposes, property is further broken down into two categories: “marital property” and “non-marital property.”
Before you make any decisions about what to do with your property, you'll need to understand the difference between “marital” and “non-marital property.” It’s essential to make this distinction, because family law courts only have the power to divide “marital property.”
“Marital” property is all property acquired by either spouse during the marriage. Missouri law assumes that all property is marital unless a spouse can prove that something is non-marital. This rule applies to both real and personal property.
For the most part, it doesn't matter whether title is in one spouse's name or both; the law assumes that an asset belongs equally to both spouses if it was acquired after the date the couple married.
There are, however, some important exceptions to this general rule. For instance, if Spouse A adds Spouse B's name to a deed to non-marital property, and Spouse B later proves in court that Spouse A had a "donative" intent (meaning, wanted to make a gift), there is a possibility that the property may be "transmuted" (changed) to marital property.
These and other exceptions can be difficult to analyze on your own. If you’re having trouble identifying property in your divorce, you should consult with an experienced family law attorney.
"Non-marital" property (also referred to as “separate" property) is everything that's not marital, and it belongs to only one spouse. The general rule is that separate property is not divided during a divorce, and it stays with the spouse that acquired it.
The most common type of non-marital property is something that was acquired before the marriage, for example, a valuable piece of jewelry or a car that one of the spouses owned outright prior to the marriage.
But there are other kinds of non-marital property under Missouri law, which have nothing to do with the date of purchase or acquisition. For example, if one spouse inherits something from a relative during the marriage, the inheritance is that spouse’s separate property. Or if a spouse receives a gift, even from the other spouse, that's also considered non-marital.
Separate property can also be identified prior to marriage. Spouses can write a prenuptial agreement before their marriage, which explicitly states what property is marital and what's separate. They will be bound to follow the terms of the agreement if they decide to divorce.
Finally, if spouses decide to legally separate (instead of divorce), all property they acquire after getting a separation decree is non-marital. This is different from the "date of separation" used for purposes of filing for divorce. When spouses split up and one files for divorce, the date they separated will be listed in the court papers. That date will be used to decide the value of assets, but everything acquired after filing for divorce is still assumed to be marital property up until the divorce is final.
“Commingling” property is very common, and simply refers to blending non-marital property with marital property.
Let’s say, for example, that Spouse A inherits money before the marriage and uses it for a down payment on a house. After this, Spouse A marries Spouse B, and they live in the home. During their marriage, they use marital income to pay the monthly mortgage. In this case, they have commingled a real property asset by using marital funds to pay down the mortgage on a separate property home.
To sort things out in such cases, Missouri courts use a formula to fairly compensate Spouse A for any contributions made toward the home both before and after the marriage. Spouse A will get a non-marital and marital percentage that reflects his or her total contribution and any appreciation in value, whereas Spouse B will only get a marital interest.
If you're planning a divorce, you have two basic options regarding the division of property.
First, you can reach an agreement with your spouse about how property will be divided. This is the ideal solution because it gives you and your spouse control of the situation, instead of leaving it up to a judge who may not fully understand all of the circumstances of your particular case.
It's common for spouses to reach out-of-court property agreements, especially when they don't have many assets or when they're able to cooperate with each other. However, even if your case seems fairly straightforward, you may want to consult with an experienced family law attorney that can make sure your rights are fully protected and help you draft or review any agreement(s).
The other alternative is to go to court and let a judge decide. Missouri judges can only divide marital property; separate property is not part of the overall distribution.
Missouri is an “equitable distribution” state, which means judges will divide marital property in a way they believe is equitable (fair), but not necessarily equal. A court doesn't have to give each spouse a 50% share of the marital assets. Spouse A could receive 65% of the marital property, and Spouse B only 35%, as long as the division is fair and reasonable.
In determining a fair division of property, courts must consider all of the following factors:
Based on these factors, a court will issue a property settlement that it believes awards each spouse a fair share of the total marital property. The property settlement will apportion (assign) any marital debts as well. The debts are offset against assets in calculating the final property award.
Missouri's divorce courts start off with the assumption that all property a couple acquires after they're officially married is marital property. If you want to be awarded separate property, you'll have to prove to the judge that it's non-marital.
Missouri follows a principle called "the source of funds rule." This means that when a court is deciding whether property is marital or separate, it will examine who paid for the property, and how. Property that is marital is divided equitably, but property that's separate is awarded to the rightful owner.
If you can prove that you paid for or obtained an asset without a contribution from your spouse, you'll be awarded your separate share. But, if you own any separate property that appreciated in value because your spouse helped pay for it during marriage, such as with the commingled house example above, then your spouse will get a share too.
For a complete list of the factors courts consider when dividing property, see the Missouri Revised Statutes Section 452.330
For the statutes governing marital and non-marital property, see the Missouri Revised Statutes, Chapter 452.
Representing Yourself in Missouri Courts, Access to Family Courts, official state website
Need a lawyer? Start here.