Divorce and Property

Divorce and property division after a couple gets divorced can lead to heated and passionate debates among newly separated couples.  Disagreements in the division of marital property can lead to lengthy and costly drawn out legal battles.   In many divorce asset and debt division cases, the couple may choose to have a mediator preside over the division of their mutual assets and divide the common debt.  This option is less costly and can be concluded in less time than if the couple would go before a family court.  However, many couples let their feelings get in the way and cannot resolve their differences with a mediator.  They must resort to family court for fair and just distribution of their assets and debt or percentage thereof.

When a family court judge is considering the division of assets and debt of a divorcing couple, he/she will consider three basic factors in family asset division to conclude his/her distribution between the couple.  They include:

  • Community Property (property owned evenly by both parties)
  • Separate or Non-Marital Property (property owned by one party and kept separate from community property)
  • Equitable Distribution (assets and/or income amassed during marriage)

In states that have community property laws, all property, income, and debt obtained during marriage and held as community property is owned equally by the couple.   Separate or non-marital property is the property one of the parties owned or obtained before marriage or clearly bequeathed to the one party through inheritance and kept as separate property.  Debt that was secured by the separate assets of one spouse will not be considered community property.  Typically, community property is divided equally between the couple after a divorce and separate or non-marital property is retained by the party that owns it.

Equitable distribution refers to any assets and income accumulated during marriage.  These assets and income are divided equitably between the parties after a divorce. Property is dived according to the financial contributions of each spouse with the higher earning receiving a larger portion of the assets or income.  In states without community property laws, equitable distribution is applied to property division after a divorce.

There are exceptions to the normal laws applied to asset distribution after a divorce.  In all equitable distribution law states and some community property law states, the family law courts are allowed to apply factors that may lean the distribution of assets in one direction or another.  The distribution of assets in these cases could be down the middle or as unequal as everything to one of the parties.  Many factors can play in this scenario and the court will have to make the final decision.

Some factors that may sway the court to grant more to one party over the other include:

  • Keeping a home and raising children
  • Spousal abuse
  • Duration of marriage
  • The earning potential of each spouse
  • The amount of separate or non-marital property owned by one of the parties
  • Which party worked harder to obtain or maintain the property
  • Money wasted by one spouse during the marriage
  • Age and health of each spouse
  • Tax consequences of property division
  • Legal premarital agreement
If you have any questions regarding divorce and property division, click here to contact a divorce attorney near you right now.
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