FAQs About Property Division

Q: If I have more in my 401(k) than my spouse has in his or hers, do we each get to keep our own?

A: In general, the retirement contributions made during the marriage belong equally to each spouse even if one spouse did not work outside the home during the marriage. They are considered "marital property."


Q: What if I had our house before we married and the mortgage was paid with my paycheck? Is the house mine when we get divorced?

A: The reduction of the mortgage balance paid with marital funds (your paycheck) is marital property so that reduction in principal must be split equitably with your spouse. Other factors may apply. Keep reading.


Q: I owned my house before I married and there was no mortgage. Is it still mine if I got divorced?

A: That depends. If your spouse has made contributions to the home through "sweat equity" such as building a deck, wallpapering, laying carpet, supervising improvements or additions to the home, the home or part of it may be converted to "marital property." These are just examples. In addition, if "marital funds" (income earned during the marriage is one form of marital funds) are used for these projects, the house or part of it may have been converted to "marital property." See below for limitations on this rule under the discussion on marital and separate property.


Q: Is it okay to put my spouse's name on my house so my spouse will get it if I die?

A: More than likely, you will be deemed as making a gift to him or her. There are better ways to accomplish your goals: a beneficiary deed, will, trust, prenuptial agreement or other method. Only a lawyer can guide you toward the right solution in your case.


Q: People talk about marital and separate property but I don't understand it.

A: Missouri law says that marital property is all property (assets) except:

  1. Property acquired by gift or inheritance;
  2. Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift or inheritance;
  3. Property acquired by a spouse after a decree of legal separation;
  4. Property excluded by a valid written agreement of the parties [generally, a prenup]; and
  5. The increase in value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions.


Q: What difference does it make whether something is marital property or separate property?

A: The court divides marital property and debts equitably (not necessarily equally) between divorcing spouses. A person's separate property is generally awarded to that person.

Taking The Next Step? Learn How.

To speak to experienced family law attorney Susan E. Hamra about your divorce case, call 636-898-5881 or 800-243-8084 or send an email today and schedule a free initial legal consultation. Hamra Law Firm, LLC, is located in Chesterfield, Missouri, representing clients across St. Charles County and St. Louis County.

You may also read more about property division here and find additional FAQs here.