Divorce is a complicated process, particularly when it comes to the division of assets or property. For spouses who have been married for years, division of property can be challenging, emotionally charged, and time-consuming. Before you panic about losing family heirlooms, car or home, you may want to know answers to the five most important questions about property division during divorce.
What’s equitable distribution?
Equitable distribution is simply the process of dividing marital property and divisible assets in court. If everything were perfect, you and your partner would successfully negotiate the division of assets without involving courts. Sometimes, some couples choose to solve their issues instead of divorcing. If you cannot come to an agreement, the court’s intervention will be necessary and ensure the marital assets are shared according to the theory of equitable distribution.
According to this theory, the court will split the assets 50-50 unless this strategy will be unfair or inequitable. To judge the fairness of the property division, the judge will analyze some critical factors. These include;
- Each partner’s debts, property, and income
- How long their marriage lasted and each spouse’s age?
- Different ways in which each of the spouses indirectly or directly contributed to the other’s professional and educational opportunities
- Each spouse’s mental and physical health
- A custodial parent’s need to own or occupy the marital home and access other household items
- Tax implications associated with property division
Note that the court may not consider alimony and child support payments during marital division.
What’s marital property?
The courts classify property into different categories.
Marital property: These include assets, income, and debts that both spouses accumulated during the marriage. Other examples of marital property include pension, investment accounts, wages, retirement funds, car loans, real estate, credit card bills, personal property, and mortgages.
Separate property: Your partner doesn’t get a share of your separate assets. These include your premarital property, debts, and other assets. Gifts and inheritances are also classified as separate property.
Divisible property: Generally, there is some time that passes between when partners separate, and the court completes the property division process. The divisible property includes the assets that the partners get during that period and assets that change value during that period. Keep in mind that the assets that you earned before the specific date of separation will be counted as divisible property if the assets were received after separation.
Determination and valuation of assets is a complex process. It would be best if you had a divorce lawyer who can act in your best interests and defend your rights.
Can a nuptial agreement protect your assets?
These agreements occur before (prenup) or during a marriage (a postnuptial). In these agreements, you and your partner define the specific assets that are classified as marital and assets that are considered separate. Such an agreement can streamline the property division process during a divorce.
Who gets to stay in the marital home?
If you have dependent or minor children, the parent with physical (primary) custody has a higher chance of staying in the marital home. But that spouse should consider whether or not they can successfully pay the remaining mortgage installments and other related costs.
If your spouse’s actions caused the divorce – will this affect their assets share?
Depending on state law, the courts may or may not consider fault during the property division process. Therefore, you should talk to an experienced lawyer to understand the entire process.
Generally, property division and other aspects of divorce are complicated. It’s best to work with a divorce lawyer to help you understand the whole process and avoid potential pitfalls.