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Extra-marital property Posted on August 4, 2011, by

The most common extra-marital asset or property that a spouse may receive  during the marriage is an inheritance from a spouse’s parent(s).  This asset is not treated as income like wages or other earnings earned during the marriage, in part, because the spouse did not receive the inheritance due to the receiving spouse’s efforts during the marriage but simply because of the spouse’s relationship to the gift giver.  Other extra-marital gifts would be un-earned gifts earned during the marriage as well.

The way to keep extra-marital property from becoming part of the marital estate is to ensure that it is not commingled with the marital estate and maintained without assets or funds of the marital estate.

Please comment, add, refute, clarify or inquire regarding this posting if you are so inclined.  I would love for this to convert to a helpful dialogue and resource.

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3 Responses to "Extra-marital property"

  1. Under the law, courts are required to find a “just and equitable” outcome when couples end their relationship and their property needs to be divided between them. The term “just and equitable” is a legal expression for what most people would call “fair”. So, what courts are required to do is come up with a “fair” result.

    • Paul Waldron, Attorney says:

      This specific comment appears to be specific to Australia, but it is generally true in many, many other jurisdictions. These kinds of cases are cases “in equity” rather than “at law,” meaning that the court has great latitude to come up with a “fair” result rather than a legally determined “money judgment.” Generally “just and equitable” means that the court will start from a position of equal (50/50), but may move from that based on the specific facts of a case and what may seem “fair” to one party in these cases may not seem so to the court or the other party.

  2. There are several factors to a family law financial property settlement which the court will consider. These factors can include:
    1. Assets held by each party including superannuation
    2. Domestic duties performed by either party such as household chores
    3. Who looked after the children
    4. Gifts received by either party
    5. How much did each party contribute financially
    6. Any inheritances

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