When a couple gets a divorce, their property is divided up, but not equally. Under the Equitable Distribution Law, marital property, meaning any property purchased during the marriage, will be divided up fairly. It is the court that decides what is fair, depending on the salaries and the debts of each spouse.
If you are going through a divorce and are unsure about the division of marital property, you should seek legal assistance to protect your legal rights and ensure you receive your fair share of any property. Here is a quick guide on how property is divided up during the divorce process.
What is Marital or Community Property?
There are two types of property considered in the divorce. The first is community property, which will be divided up between the two spouses. The second is “separate property”. This property belongs to one spouse and will not be divided between the two parties during the divorce.
Community property includes any property bought with earning accumulated during the marriage. This includes any property bought with debt acquired during the marriage.
Any property acquired as a gift or inheritance to just one spouse is not considered community property. Business premises acquired before the marriage, or property purchased with the proceeds of a pension withdrawn before the marriage began, are also not considered community property. If these increased in value during the marriage, or marital funds were spent on renovating the property, it is possible that part of these properties could be considered community property.
How is Community Property Divided?
The manner in which community property is divided varies from state to state. In Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, community property is generally split 50-50 between the spouses. Each spouse, however, is entitled to keep their respective separate properties.
Everywhere else, the judge will decide how the property is to be split in line with Equitable Distribution Laws. The court will award each spouse a percentage share of the property. It is then up to the spouse to provide the other party with assets or finances which add up to the value of their percentage stake in the property. Note that attempting to hide assets during property division is illegal.
How Will the Court Decide What is “Equitable”?
The court considers each spouse’s income and assets at the time of the marriage. It will also look at the spouse’s ages, which spouse has custody of any children, the loss of inheritance or personal benefits, and the effect the marriage had on both parties’ career progression and trajectory.
The court does not look at the reason for the divorce when dividing up the property. In cases of domestic abuse, the abuse would likely have had to result in a felony to make an impact on the court’s decision. A far larger factor in the court’s decision-making will be which parent has custody of any children.
Dividing up a property can get messy and it is always best to attempt to solve the issue without the help of the courts. However, if no conclusion can be reached between the two spouses, the court is always there to settle the matter. Be sure to find experienced legal counsel before heading into any divorce proceedings.
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