My husband owned a lot prior to our marriage. He has gotten a very good offer on this land. Does he get to keep all the capital gains or will this be considered part of marital assets since he sold it during our marriage? We are not legally separated. Thank you.
*** Not a lawyer ***
If he didn’t gift it to the marital unit, then it could well be considered his separate property and therefore the capital gains would also be considered his separate property. OTOH, if mortgage payments were made from marital funds then you might have acquired some interest in the property. You’d probably need a lawyer to look at all the facts of your particular situation to give you a really useful answer.
SadDaddy is correct. If property was acquired prior to the marriage, the test for whether there has been a conversion of that separate property to marital property is twofold. If one spouse deeds the property to both spouses, it is considered a gift to the marriage. If there was any increase in value to the separate property over the course of the marriage, the court looks to the source of those increases to determine if the property has any marital component. If those increases were active such as paying the mortgage with marital funds or by actively improving the land, the court may determine that some of the value of the property is marital in nature.