Dividing Matrimonial Property by Kurt E. Schlachter


Jack and Jill were married after dating for a number of years. They did not live together before the marriage, and they each owned a house. After the wedding, Jack sold his house and they bought a new house to live in together. Jill kept her house as a rental property. Several years later, things didn’t work out and they decided to separate. During the process of concluding their divorce, the issue of matrimonial property division came up for discussion. Jill felt that everything had to be divided equally, except her rental property. Jack disagreed. Who was right?

Despite the well known concept that matrimonial property is typically divided equally, there are some cases in which such a distribution can be departed from. For example, the Matrimonial Property Act (or MPA) allows married parties who are dividing their property to claim that certain items should not be included in the overall distribution. Specifically, property acquired before marriage, inheritances or gifts, and personal injury settlements may not be equally divisible. However, the increase in value of such exempt property during the course of the marriage may be subject to distribution. Exemptions can also be quite complicated, and may require a mechanism known as tracing if the property over which an exemption is claimed no longer exists in its current form at the time of distribution. In the case of Jack v. Jill, each party may accordingly have a valid exemption claim.

For further assistance with the issue of exemptions or matrimonial property distributions in general, please contact one of our knowledgeable lawyers.

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