When spouses cannot agree on how property and debts will be divided up during a divorce, the court will make that decision. Some states use the community property method. Most use equitable distribution. An experienced divorce lawyer can explain the property division system that will apply to you in-depth and help you protect your rights and receive the most favorable arrangement possible.
Marital vs Separate Property
The first issue to address in property division is identifying what is marital property and what is separate property. Generally, only the marital property is divided, although in some states and under certain circumstances separate property can be included.
Marital property includes assets, income, and debts that are acquired during the marriage.
Separate, or non-marital, property includes property, income, assets, and debts acquired before the marriage. Also, certain property acquired during the marriage may be considered separate, such as inheritances, gifts, and student debt.
Also, separate property or a portion of its value may be converted to marital property if the other spouse contributed to its value or made payments on it during the marriage.
An important role of a divorce attorney is determining what qualifies as marital and separate property in your case, and protecting your rights.
Community property is the method most people are familiar with, even though it is only used in a few states. In a community property state, marital income, assets and debts are divided up 50/50 between both spouses. It sounds straightforward, but it can be a complicated process.
Equitable distribution is used to divide property in most states. Instead of making an even split of the property, the court considers many factors and then distributes the property in a manner that it considers equitable or fair. Factors which may be considered in your state include:
- Contributions each spouse made to the marriage including financial contributions and services, so that a spouse who was not the breadwinner gets credit for the non-financial contributions they made, often allowing the breadwinner to make higher contributions and attain a higher earning capacity
- Responsibility for the children after the divorce
- Financial resources of each spouse including separate property and earning capacity
- Age and health of each spouse
- Economic fault on the part of a spouse, if there is any
- Fault in a fault divorce
It is common for minor children to get first priority when it comes to the family home. The custodial parent may be granted the right to reside in the family home, so that the children can remain in their home, even if ownership or partial ownership is granted to the non-custodial parent.
To find an experienced divorce lawyer in your area who can help you with property division issues, please search our network of divorce lawyers today.