The family courts no longer divide property according to the name in which title is held.

The courts now recognize that a non-working spouse may contribute toward acquiring property by performing duties as a homemaker, managing other family property, or supporting the career of the primary breadwinner. This is the principle of equitable apportionment of property and debts, sometimes called equitable division, equitable distribution, or special equity. A common example is the wife first works to put the husband through college, trade school, or graduate school, making it possible for the husband to earn a substantial income, and then stays home to raise the children, manage the home and family finances, and support the husband's business or professional career.

The family court first decides whether property is marital property or non-marital property. Non-marital property is property acquired before the marriage, acquired by gift or inheritance, excluded as marital property by written agreement, or property acquired in an exchange for non-marital property. Marital property includes all real estate or personal property either party acquired during the marriage or was used by the spouses as marital property.

Transmutation is the process by which nonmarital property becomes marital property. For example, if one party owned a mobile home before the marriage it would be nonmarital property; however, if used as the marital home during the marriage, it might become marital. If the parties used marital money to make payments on it, then it would most probably become martial. If the parties titled it in both names after the marriage, it certainly becomes marital.

After deciding what property is marital property, the family court then decides its value. If the parties do not agree on the value, the judge will decide the value based on testimony and exhibits. Each party may hire expert witnesses to appraise the property and testify to its value. The family court may appoint an additional appraiser.



After determining the value of the property, the family court will then decide what percentage of the marital property each spouse receives. The court considers the source of the property but also considers 15 statutory factors.7 While judges frequently divide marital property equally, an equal division is not a certainty.

The critical key to a successful apportionment of property is a thorough and complete identification and valuation of the property on the financial declaration.