Various laws concerning a person’s property rights during marriage are normally based on the state that the marriage took place in. Marriage and property ownership laws in different states are divided into two different categories. There are states with community property laws and states that do not have community property laws. These different laws govern how spouses can dispose of their property or use their property during marriage. They also govern how property will be divided in the event that the spouses have a divorce or in the event that one of the spouses dies. Most states give spouses the chance to change a state’s law a little regarding marital properties through the use of spousal agreements.
Community Property States and Common Law States
The property that two people own during a marriage is divided into two different categories. Property can be either non-marital property or community property. Community property is property that a married couple own together. Non-marital property is a type of property that a spouse owns alone or owned before he or she got married. However, this type of property can become marital property if it becomes mixed in with property that the couple owns together. For example, if a spouse uses money that was obtained before the marriage to pay towards a down payment for a home with his or her spouse and both people make payments with money that is earned after the marriage, the complete equity in the home becomes marital property.
Common law states pay more attention to the name that is on the title of the property when it comes to a spouse’s property ownership rights. For example, if each spouse has a car in his or her name, it will belong to only him or her. However, if the house is in both names, they each own half of the value of the house.
Postnuptial and Prenuptial Agreements
All states regardless of their laws concerning marriage and property will let married couples create reserved agreements about property and the division of property. However, there will be various specifications regarding what is allowed in these agreements. The specifications are different with each state. An agreement can never put a limit to how much child support will be paid if a divorce does happen. Depending on the state, this might also apply to spousal support as well. Most of the time prenuptial agreements and postnuptial agreements are geared towards the spouse’s property ownership rights. Your state’s courts are probably going to pay more attention to enforcing prenuptial agreements than postnuptial agreements. However, both types of agreements will only be enforced if each spouse has equal negotiating power. There must also be full financial disclosure between both parties.
SOURCES:
http://www.nolo.com/legal-encyclopedia/marriage-property-ownership-who-owns-what-29841.html
http://www.prenuptialagreements.org/postnuptial-agreements/
http://www.bankrate.com/brm/news/pf/20060322a1.asp
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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