One primary issue in most divorces is the identification and valuation of "marital property." "Marital property" is defined as all property acquired by one or both parties during the marriage, regardless of title. It does not, however, include property acquired prior to the marriage; property acquired by inheritance or gift from a third party; property excluded by valid agreement between the parties; or property directly traceable to any of these sources.
Whether property is "marital" or "non-marital", or "partly marital" and "partly non-marital" depends not upon how the property is titled, but upon the source of payments used to acquire the property.
Almost every divorce scenario involves items of real and personal property such as homes, furniture, automobiles, financial accounts and pensions, acquired both before and during the marriage. In most instances, it is relatively simple to determine which items are marital or non-marital. Where, however, a marriage is one of many years with substantial assets acquired through loans, gifts or inheritances "mixed" in an account with marital funds, identifying the marital or non marital nature of the property becomes a difficult and substantial, but necessary task.
A court must resolve ownership rights to property according to title only. Except in limited situations, it does not have the power to transfer ownership of real or personal property from one spouse to the other. A court, however, does have the power to order jointly-titled property sold and does have the discretion to award a monetary award concerning the sale proceeds in favor of one spouse against the other. All marital property must be identified and valued. The sole purpose of identifying and valuing marital property is to form a basis upon which a monetary award may be granted. A "monetary award" is a lump sum payment from one spouse to the other designed to accomplish an equitable division of property where actual distribution of property or its proceeds in accordance with title would be unfair and inequitable. For example, if a home is titled in both spouses' names but one spouse has made substantial pre/non marital payments towards the purchase of the home, a court may award a monetary award in favor of the spouse who made such contributions to be paid by the other spouse.
A court may award only one monetary award and any award is limited to the total value of marital property.