Often during a divorce, assets purchased by one party during cohabitation prior to marriage are considered marital assets. But this is not always the case. Courts need to review the facts surrounding the parties’ relationship. Questions must be asked, such as: Was the asset purchased as part of a shared enterprise leading to the marriage? Was the asset purchased as a regular part of the purchaser’s lifestyle and had nothing to do with the plans for a shared life (ie., adding to a comic book collection)? Did the non-purchaser then act in reliance of an expectation that [s]he would have an interest in that asset?
Additional factors also come into play. For instance, at the time of divorce, did the non-purchaser receive substantial amounts of other assets in equitable distribution? Did [s]he receive alimony?
All of the above questions revolve around fairness. The judge will be inquiring as to whether it is “fair” for the purchasing party to keep that asset in its’ entirety or is it more “fair” that the asset be shared in some fashion. As I often describe, “it depends” is the operative but unsatisfying ,answer.