How is property divided in a divorce?
Going through a divorce entails taking the life a married couple has created and splitting it into two for both spouses to share. Among this division, property must be split between the couple.
The way property is divided in a divorce depends on several details, including state laws and your circumstances.
Property Division is One of the Most Important Matters in a Divorce
During your divorce, you’ll tackle many important matters, depending on your situation. Some of these topics include:
• Child custody
• Child support
Property division is one of the most critical matters in a divorce, and is often one of the most challenging. Certain circumstances, like a contentious divorce, extensive property, or spouses attempting to hide assets, can make the process more difficult and time-consuming.
It’s helpful to note that property division doesn’t always equal physical division. Distributing property may also simply mean taking a percentage of the value of a property.
While property division can be tough to navigate, a knowledgeable divorce lawyer can confidently guide you through the process.
Property Division Depends on State Divorce Laws
State law dictates how many topics are handled in a divorce, including property division.
It’s essential to look at your state’s divorce laws to determine whether you live in a community property state or an equitable distribution state. Knowing your state’s laws can give you an idea of what to expect.
In a community property state, property acquired during the marriage is considered owned by both spouses. This includes property that may only be in one spouse’s name. If you acquired any property while married, under the law in a community property state, it belongs to both spouses.
There are only nine community property states, including:
• New Mexico
In these states, community property is generally split evenly between the parties, unless the parties agree otherwise or state law allows judges to take a more equitable approach to dividing property.
Most U.S. states operate under the principle of equitable distribution.
In an equitable distribution state, marital property is divided in a way that is equitable, or fair, to both spouses. Therefore, in many cases, property distribution may not end in a perfect 50/50 for both spouses, as it highly relies on the details of the case and the couple’s circumstances.
Marital Property vs. Separate Property
Community property and equitable distribution states do have something in common: they typically do not allow for the distribution of separate property, only marital property.
Marital property encompasses property the couple acquires during the life of the marriage. Even if one spouse acquired property, but used marital assets to do so, it would be considered marital property.
Separate property, on the other hand, is property belonging to the spouses individually. Separate property is usually property a spouse owned before the marriage, or during the marriage through inheritance or gift. Depending on the state, it may also encompass property acquired using a spouse’s own funds, no matter if before or during the marriage.
In most cases, separate property is untouchable and cannot be divided between spouses. Distinguishing marital property from separate property is crucial in a divorce.
“Property” Has Multiple Meanings
“Property” does not only include physical property. It also includes several types of assets, including stocks, cash, personal property, and so on. Debts must also be divided between the couple.
Even when a couple divorces, debts and liabilities still exist. Therefore, debts are important to distribute among the spouses in order to ensure they’re satisfied and avoid future financial trouble for either party.
Because property refers to so many different types of property, assets, and debts, it can take time to properly divide everything before finalizing a divorce.
How Property is Divided in a Divorce
Spouses typically have options when it comes to property distribution. The spouses can either tackle property division together and make decisions for themselves or leave the decisions up to a judge.
Divorce and property division don’t have to be a battle. When spouses are willing to work together, they can divide their property amongst themselves.
Coming up with a plan together can involve attorneys for guidance, as well as alternative dispute resolution, like mediation. During mediation, a neutral third party facilitates communication and understanding between parties to reach common ground and beneficial results.
If seeking a resolution together is a viable option, spouses can include their
agreed-upon plans for property division in a joint agreement to present to a judge for approval.
In cases where spouses are not willing or able to divide their own property, a judge can assist and make decisions based on the couple’s situation.
Factors that Affect Property Distribution
If you’re in an equitable distribution state and a judge is making property division decisions, they’ll likely examine several details before reaching a conclusion. The following factors are helpful for judges distributing a couple’s property in a divorce:
• The length of the marriage
• Each spouse’s income
• Each spouse’s assets and debts
• Property values
• The extent of any tax consequences
• The grounds for divorce, if any
• The details of the marriage and how it ended
Judges strive to make educated decisions when dividing property between spouses. Therefore, it’s critical to examine the spouses, the marriage, and the details surrounding the end of the marriage.
A Lawyer Can Assist with Property Division in a Divorce
A divorce not only takes a toll on you emotionally, but also financially. Having quality legal representation is essential, but expenses can quickly add up.
Fortunately, there are ways you can hire a lawyer and save money. Learn more about the cost of divorce and the ways you can save money.